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Marine (Domestic Commercial Vessel National Law Application) Bill 2013

Introduction Print

EXPLANATORY MEMORANDUM

General

The primary purpose of the Marine (Domestic Commercial Vessel National Law Application) Bill 2013 is to adopt in Victoria a national approach to the regulation of commercial vessels by—

applying the Commonwealth domestic commercial vessel national law as a law of Victoria; and

making provision to enable the Commonwealth law and the applied law of Victoria to be administered on a uniform basis by the Commonwealth (and by Victorian officials as delegates of the Commonwealth) as if they constituted a single law of the Commonwealth.

The Bill also—

repeals provisions of the Marine Safety Act 2010 which are no longer required; and

makes consequential amendments to affected Victorian statutes.

The Bill forms part of a scheme for the national regulation of commercial vessels, including the establishment of a national marine regulator, in accordance with the State's intergovernmental obligations.

Together with the Commonwealth domestic commercial vessel national law, the Bill makes the most significant changes since settlement to the way small commercial craft are regulated in Victoria. The Bill does this by facilitating an historic shift in responsibility from States and Territories to the Commonwealth.

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Commonwealth and State division of responsibility for vessels

Regulatory control of all commercial vessels in Australian waters, including certification of vessels and their crew and controls on equipment and operations, was originally the responsibility of colonial governments and later became the province of states and territories following federation in 1901.

These responsibilities changed in the early part of the twentieth century with the establishment of a national marine statute—the Navigation Act 1912 of the Commonwealth—which gave the Commonwealth control of commercial vessels on overseas or interstate voyages, effectively the largest vessels on our waters.

From that point the Commonwealth regulated three different types of commercial vessel types. These are trading vessels on overseas and interstate voyages, fishing vessels on overseas voyages and offshore drilling rigs and similar structures. The trading vessels are generally the largest operating in Australian waters and include large container and passenger ships.

The State and Territories, on the other hand, currently have legislative responsibility for trading vessels on intrastate voyages, fishing vessels on intrastate and interstate voyages and all hire and drive vessels operating in State and Territory waters.

In addition, States and Territory marine safety legislation (such as the Marine Safety Act 2010) regulates vessel operations for all commercial vessels in State waters. This regulation includes—

local waterway rules; and

drug and alcohol controls; and

rules dictating when pilots are required to assist with vessel movements; and

harbour masters' powers to direct commercial vessels in ports.

This regulatory arrangement has evolved over time. Some harmonisation of regulatory practices in the marine sector across Australia has taken place through the introduction of national standards and the work of the former Australian Transport Council and the current Standing Council on Transport and Infrastructure.

However, there have been concerns raised by some jurisdictions and stakeholders that the jurisdiction-based nature of land and water transport regulation has impeded national efficiency and held back improvements in regulatory outcomes. This was seen as particularly the case for stakeholders

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in the commercial vessel sector, especially boat designers and builders and those who have an interest in moving their intrastate operations to another jurisdiction.

The national marine scheme

These concerns led to the development of a national scheme for commercial vessels ("the national scheme"). The national scheme is part of the Council of Australian Governments ("COAG") agenda which seeks to improve national economic outcomes.

Under the national scheme, the Commonwealth assumes responsibility for the regulation of commercial vessels currently regulated by States and Territories. The Australian Maritime Safety Authority ("AMSA") becomes the regulator ("National Regulator") for all commercial vessels in Australian coastal and inland waters.

An intergovernmental agreement to this effect was signed on 19 August 2011.

Victoria currently has around 1465 domestic commercial vessels operating on State waters. The vessels vary widely in nature and purpose and include fishing craft, passenger and trading boats, houseboats and a wide range of other small and medium sized vessels. Many of the vessels are operated by their owners while others are hired to members of the public.

The national proposal is structured predominantly as a Commonwealth scheme. The Commonwealth has enacted the Marine Safety (Domestic Commercial Vessel) National Law Act 2012 to provide the platform for the scheme and establish the National Regulator.

Under the Marine Safety (Domestic Commercial Vessel) National Law Act 2012 of the Commonwealth, the Commonwealth takes responsibility for the regulation of commercial vessels to the extent possible under the Commonwealth's constitutional powers. This amounts to control of over 90% of Victoria's commercial vessel fleet. However, the Commonwealth does not have the power to regulate all Victorian commercial vessels, particularly those that are not owned by constitutional corporations and which operate on inland waters in Victoria.

Retaining a separate State-based regulatory regime for a small percentage of the commercial vessel fleet sector is not tenable. State legislation is therefore needed to give the National Regulator responsibility for the regulation of those Victorian regulated vessels that the Commonwealth cannot otherwise regulate under its own powers.

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Accordingly, clause 4 of the Bill applies the Commonwealth domestic commercial vessel national law as a law of Victoria ("the applied provisions"). The Bill contains a number of provisions to ensure the applied provisions are applied in the same way as the Commonwealth domestic commercial vessel national law.

The Bill also amends Victoria's Marine Safety Act 2010 and other affected local statutes.

The Bill contains transitional arrangements that help the commercial marine industry move to the national scheme so that persons and vessels operating under current State or Territory legislation can continue operations when the national scheme commences.

Matters remaining under local regulation

The Commonwealth domestic commercial vessel national law has been heavily influenced by Victoria's marine safety laws, particularly, the Marine Safety Act 2010, and adopts many of the key features of the Victorian law such as safety duties, certification of safe operations and most of the compliance and enforcement powers and sanctions.

The Commonwealth domestic commercial vessel national law does not fully replace existing State and Territory laws. The Marine Safety Act 2010, for example, continues to apply to aspects of commercial vessel operations across the State. The key aspects that remain regulated by the Marine Safety Act 2010 are—

local waterway rules (Part 5.5); and

harbour masters powers to direct commercial vessels in ports (Chapter 6); and

rules dictating when pilots are required to assist with vessel movements (Chapter 7).

Drug and alcohol controls also continue to apply under the Marine (Drug, Alcohol and Pollution Control) Act 1988.

The national law preserves the operation of important State laws which regulate occupational health and safety. This enables the oversight of WorkSafe to continue in workplaces in our commercial marine sector.

The national scheme does not envisage AMSA having a substantial day to day role in administering the scheme. Instead, the intergovernmental agreement provides that AMSA will delegate all or most of its new powers back to existing State and Territory regulators who will administer the framework on the ground.

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General

The Bill applies, as a law of Victoria, the "Commonwealth domestic commercial vessel national law", meaning—

the Marine Safety (Domestic Commercial Vessel) National Law of the Commonwealth (being the provisions applying as a law of the Commonwealth because of section 4 of the Commonwealth Act); and

the regulations and other legislative instruments in force under that Law, and

any other provision of a Commonwealth Act, or of a regulation or other legislative instrument in force under a Commonwealth Act, that is of a savings or transitional nature consequent on the enactment or amendment of that Law.

The Marine Safety (Domestic Commercial Vessel) National Law of the Commonwealth ("the National Law (Cth)") is set out in Schedule 1 to the Marine Safety (Domestic Commercial Vessel) National Law Act 2012 of the Commonwealth. That Act was passed by the Commonwealth Parliament on 23 August 2012 and received the Royal Assent on 12 September 2012. The Act and the explanatory memorandum for the Marine Safety (Domestic Commercial Vessel) National Law Bill 2012 are reproduced in Annexure 1 to the Bill. The Commonwealth domestic commercial vessel national law establishes the national scheme for the regulation of domestic commercial vessels and appoints AMSA as the National Regulator for all commercial vessels in Australian coastal and inland waters. The Director, Transport Safety Victoria ("the Safety Director") will be responsible for administration of the national scheme in Victoria under delegation from AMSA, consistent with the intergovernmental agreement, and provisions are included in the Bill to facilitate this.

The Commonwealth domestic commercial vessel national law and the applied provisions together form the Marine Safety (Domestic Commercial Vessel) National Law for the purposes of regulation of domestic commercial vessels in Victoria.

Model application law

The Bill was prepared following the model for applying the Marine Safety (Domestic Commercial Vessel) National Law developed by the joint Parliamentary Counsel's Committee. The intention of the model Bill is to provide a consistent basis for State and Territory application statutes.

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Victorian variations

The model Bill is supplemented by provisions necessary to accommodate the regulatory position in Victoria. These provisions include clarifying that the Victorian Charter of Human Rights and Responsibilities Act 2006 applies to the Safety Director and Victorian officials when acting as delegates of the National Regulator.

The variations also make consequential amendments to affected Victorian statutes.

The Director, Transport Safety Victoria (and Transport Safety Victoria)

The Safety Director is a statutory office created under Part 7 of the Transport Integration Act 2010.

The Safety Director is charged with the independent safety regulation of rail, bus and marine transport in Victoria. The object of the Safety Director is to independently seek the highest transport safety standards that are reasonably practicable and consistent with the vision statement and the transport system objectives as set out in section 172 of the Transport Integration Act 2010.

Section 11 of the National Law (Cth) allows the National Regulator to delegate certain powers and functions to an officer or employee of a Commonwealth agency, or an officer or employee of a State or Territory agency, with the consent of the relevant State or Territory.

In Victoria, the Safety Director will assume responsibility for day to day administration of the Marine Safety (Domestic Commercial Vessel) National Law in accordance with the intergovernmental agreement and will use officers of the Department of Transport. The relevant area is known as Transport Safety Victoria.

Delegations of powers and functions by the National Regulator must be in writing.

The Bill amends the Transport Integration Act 2010 to enable the Safety Director to accept delegations from the National Regulator.

Clause 20 of the Bill provides, among other things, that the Safety Director is authorised to be a delegate for the purposes of the Marine Safety (Domestic Commercial Vessel) National Law if authorised by the relevant Minister (the Minister for Ports).

Clause 20 further provides that the Minister can only make such an authorisation if satisfied that there are sufficient arrangements in place and resources available to enable the Safety Director to carry out functions and powers delegated by the National Regulator. In making that determination,

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the Minister would place reliance on the existence of an agreement for the provision of services signed by the National Regulator, the local regulator and the Minister.

Clause 93 makes it clear, for the avoidance of doubt, that the Safety Director is an officer of an agency within the meaning of section 11 of the National Law (Cth).

The functions likely to be delegated to the Safety Director include the assessment of applications for various certifications, issuing of certificates and the conduct of on the ground compliance monitoring and enforcement activities.

Fees and charges

It is intended that the Bill form a component of a nationally consistent co-operative scheme across Australia for the regulation of commercial vessels by AMSA.

Each jurisdiction committed to using best endeavours to adopt the national law and to making other changes so that the Marine Safety (Domestic Commercial Vessel) National Law applies as intended from commencement.

Paragraph 50(f) of the intergovernmental agreement states that the National Regulator will not provide reimbursement to States and Territories for services carried out on behalf of the National Regulator.

Accordingly, States and Territories must put in place fees charging mechanisms to recover the costs incurred when delivering functions on behalf of the National Regulator.

The Bill includes the required fees in the Bill which currently apply under the Marine Safety Regulations 2012 in Victoria for services provided by the Safety Director on behalf of the National Regulator.

The fees set out in the Bill ensure that costs incurred by the Safety Director can be recovered as soon as the Marine Safety (Domestic Commercial Vessel) National Law commences.

The fees in the Bill are the same as currently apply under the Marine Safety Act 2010. The Bill provides that the fees apply in Victoria until cost recovery levels are reviewed and new fee regulations can be made in accordance with the requirements of the Subordinate Legislation Act 1994.

Strict liability offences

Strict liability offences arise in a regulatory context where the sanction of a criminal penalty is justified on the grounds of public safety and the public interest in ensuring compliance with a regulatory regime.

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Strict liability offences are also considered appropriate where because of his or her professional involvement in a particular sector, a person can reasonably be expected to know the requirements of the law governing that sector. It is generally accepted that excluding the mental or fault element of an offence in this context is justified.

The rationale for this is that persons who owe general safety duties such as employers, people in control of aspects of work and designers and manufacturers of work structures and products are expected to be aware of their duties and obligations to workers and the general public.

In applying the Commonwealth domestic commercial vessel national law, the Bill applies a range of strict liability offences where the prosecution will have to prove only the conduct that constitutes an offence. However, an accused person can produce evidence of an honest and reasonable, but mistaken, belief in the existence of certain facts which, if true, would have resulted in that conduct not constituting an offence. In this case, the prosecution will need to establish that there was not an honest and reasonable mistake of fact for an offence to be made out.

The strict liability offences are in the main subject to other qualifiers such as reasonable practicability, due diligence or reasonable care.

Infringements regime

The Marine Safety (Domestic Commercial Vessel) National Law provides for regulations to be made under that law to allow an alleged offender to pay a penalty as an alternative to prosecution. The penalty is one-fifth of the maximum fine imposed by a court for the offence. This provision is intended to allow for effective enforcement of the Marine Safety (Domestic Commercial Vessel) National Law without imposing an unnecessary burden on the court system.

The Bill provides that offences against the applied provisions are to be taken as offences against the laws of the Commonwealth. As a result, the Commonwealth infringements scheme applies in respect of infringeable offences committed in Victoria.

The Commonwealth infringements scheme differs from the State scheme. The scheme in Victoria is governed by the Infringements Act 2006. This is an Act of general application administered by a central agency (the Department of Justice) and provides the administrative arrangements for multiple infringement notice schemes within Victoria, addressing issues such as procedures for payment, extensions of payment deadlines, consequences of non-payment, and enforcement.

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Commonwealth infringement notice schemes have embedded administrative procedures. The principal legislation or subordinate law made under that legislation sets out the administrative arrangements for a specific scheme including procedures for payment, extensions of payment deadlines, withdrawal of notices, and prosecution action where an infringement penalty is not paid.

At the Commonwealth level each regulatory agency is responsible for administering its own infringement notice scheme. This is consistent with the infringement notice scheme proposed in the National Law.

An unpaid infringement notice in Victoria may become a debt to the State without a decision of a court and enforcement orders can be actioned within prescribed timeframes. However, the Commonwealth is prevented by virtue of the separation of powers required by the Commonwealth Constitution from having a similar regime in a Commonwealth law.

If a Commonwealth infringement notice is unpaid the only options available to the Commonwealth are to withdraw the notice or prosecute the offender. However, such a prosecution would not seek to recover only the amount of the infringement notice penalty. The prosecution would instead seek the maximum penalty allowed under the offence provision which is equal to five (5) times the infringement notice amount.

Jurisdictions undertook in the intergovernmental agreement to facilitate enforcement of the National Law for consistent application across the jurisdictions. However, concerns expressed by jurisdictions about the effectiveness and resources required to adhere to Commonwealth practices resulted in the Commonwealth providing the States with different options.

In Victoria, it is proposed that infringement notices will not be issued for breaches of offences under the Marine Safety (Domestic Commercial Vessel) National Law. Instead, marine safety inspectors have the capacity to issue "records of non-compliance" (RONCs) and provide copies of these records to AMSA. AMSA will then determine whether to issue an infringement notice, take alternative actions or take no action at all. AMSA will have responsibility for the costs and resources involved in administering infringements or taking alternative actions.

The decision to issue RONCs for offences against the National Law in Victoria aligns with the approach taken to enforcing conduct offences on public transport. Under these arrangements, officers employed and authorised to do so by public transport companies issue RONCs. It is then left to the Department of Transport to determine whether an infringement notice should be issued and to take whatever follow up actions are necessary.

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Penalties

The Bill applies the penalties for offences which are set out in the National Law (Cth). Some penalties are intended as a deterrent to unsafe behaviour. The penalties are intended to give capacity to respond proportionately to breaches by duty holders.

Where death or serious injury results from a breach the social and economic costs are likely to be far greater than the maximum fines. This supports the overall objective of setting penalties at a level aimed at increasing compliance with the national law.

The Marine Safety (Domestic Commercial Vessel) National Law provides for three categories of offences. The highest category of offence is for a breach of a general safety duty that is intentional and carries the highest maximum penalty. Other categories of offences are for reckless and negligent breaches which attract relatively lower penalties commensurate with the level of culpability in the circumstances.

Section 5 of the Criminal Code Act 1995 of the Commonwealth defines the meaning of intentional, reckless and negligent in the context of the offence provisions. Penalties are applied to each category of offence in accordance with that Act. Under section 4AA of the Crimes Act 1914 of the Commonwealth, one "penalty unit" currently equates to $110.

Penalties and the possibility of imprisonment in the most serious cases are a key part of achieving and maintaining a credible level of deterrence to unsafe behaviour. Penalties also complement other types of enforcement action such as the issuing by a marine safety inspector of a prohibition notice requiring that an unsafe activity cease immediately.

The maximum penalties provided in the Marine Safety (Domestic Commercial Vessel) National Law reflect the level of seriousness of the offences. They have been set at levels intended to reflect the most extreme examples of offences.

Preservation of Victorian occupational health and safety laws

Section 6 of the Marine Safety (Domestic Commercial Vessel) National Law provides for the concurrent operation of Victorian occupational health and safety laws.

This ensures that the mutually reinforcing relationship between transport safety regulation and the Victorian Occupational Health and Safety Act 2004 continues after commencement of the Marine Safety (Domestic Commercial Vessel) National Law. That is to say, the Victoria occupational health and safety laws continue to apply. This allows the Safety Director and

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WorkSafe to continue to work co-operatively towards achieving and sustaining a safety culture and good safety outcomes.

Section 6 of the Marine Safety (Domestic Commercial Vessel) National Law complements section 11 of the Marine Safety Act 2010 in that section's preservation of the operation of the Occupational Health and Safety Act 2004. Section 11 of the Marine Safety Act 2010 provides for the workplace safety duties under the Occupational Health and Safety Act 2004 to prevail in the event of an inconsistency between those duties and the marine safety duties under the Marine Safety Act 2010.

Evidential burden

An evidential burden (or "burden of proof") requires a person to provide evidence of an asserted fact in order to prove that fact to a court.

In some instances the Bill applies a Commonwealth provision which places an evidential burden on an individual to demonstrate a reasonable excuse as to why they have failed to meet a duty or obligation.

Several provisions in the Marine Safety (Domestic Commercial Vessel) National Law shift the evidential burden by requiring a person to show a reasonable excuse. This is because that person is the only one in the circumstances with the relevant knowledge to be able to provide evidence of any reasonable excuse for refusing or failing to meet the relevant duty or obligation.

Structure of the Bill

The Bill is divided into 11 parts and one Schedule.

Part 1 sets out preliminary matters including the purpose of the Bill and definitions.

Part 2 provides for the application of the Commonwealth domestic commercial vessel national law as a law of Victoria and matters relating to interpretation.

Part 3 sets out the functions and powers of the National Regulator and other authorities and officers under the applied provisions of the Bill. The Part also contains a provision relating to delegations by the National Regulator.

Part 4 sets out provisions relating to the treatment of offences under the applied provisions of the Bill. The part also contains provisions relating to the functions and powers of Commonwealth officers and authorities relating to offences and provides against double jeopardy.

Part 5 provides for the application of certain Commonwealth administrative laws.

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Part 6 contains provisions relating to fees and fines for things done under the Marine Safety (Domestic Commercial Vessel) National Law. The Part also provides for payments relating to infringement notices.

Part 7 contains a local modification to clarify the application of human rights legislative requirements to the Safety Director and Victorian officers when acting as a delegate of the National Regulator.

Part 8 provides for a number of miscellaneous matters relating to the relationship between Commonwealth laws and the Bill and the making of regulations. The Part also contains provisions authorising persons to act as delegates of the National Regulator.

Part 9 provides for the making of regulations dealing with transitional matters.

Part 10 makes amendments to Victoria's marine safety statute, the Marine Safety Act 2010.

Part 11 makes amendments to other Victorian statutes includes transport statutes such as the Marine (Drug, Alcohol and Pollution Control) Act 1988, the Transport (Compliance and Miscellaneous) Act 1983 and the Transport Integration Act 2010.

The Schedule to the Bill contains the fees and charges which apply under the Marine (Domestic Commercial Vessel National Law Application) Act 2013 until regulations are made in the future under the local law.

Clause Notes

PART 1—PRELIMINARY

Part 1 of the Bill is based on the provisions of a model Bill for applying the Marine Safety (Domestic Commercial Vessel) National Law developed by the joint Parliamentary Counsel's Committee. The model Bill was developed to provide a consistent basis for State and Territory application statutes.

Part 1 of the Bill deals with matters of a preliminary nature. It outlines the purpose of the Bill and contains the commencement and interpretative provisions, including definitions.

Clause 1 sets out the main purpose of the Bill, which is to adopt in Victoria a national approach to the regulation of marine safety in relation to domestic commercial vessels. This is achieved by—

applying the Commonwealth domestic commercial vessel national law as a law of Victoria; and

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making provision to enable the Commonwealth domestic commercial vessel national law and the applied law of Victoria to be administered on a uniform basis by the Commonwealth (and by Victorian officials as delegates of the Commonwealth) as if they constituted a single law of the Commonwealth.

The Bill facilitates the implementation of the national scheme in Victoria by applying the Commonwealth domestic commercial vessel national law to those vessels operating in Victorian waters which are not within the scope of the Commonwealth's powers.

The Bill also facilitates the consistent and seamless administration of the national scheme among the jurisdictions irrespective of whether a person is dealing with the National Regulator itself or a State or Territory officer acting as a delegate of the National Regulator.

It is noted that certain aspects of the regulation of domestic commercial vessels are dealt with under the Marine Safety Act 2010 and the Marine (Drug, Alcohol and Pollution Control) Act 1988 and other statutes.

Under the national scheme, States and Territory marine safety legislation continues to regulate key aspects of commercial vessel operations when vessels are in State waters. These include matters relating to when pilots are required to assist with vessel movements, the management of waterways, drug and blood alcohol controls and harbour masters' powers to direct commercial vessels. In Victoria, these requirements are primarily contained in the Marine Safety Act 2010 and the Marine (Drug, Alcohol and Pollution Control) Act 1988.

Clause 2 deals with commencement and provides that the Bill comes into operation on a day or days to be proclaimed. This is appropriate as commencement of the national scheme is dependent on a range of factors including the actions of other jurisdictions.

Commencement of the Marine Safety (Domestic Commercial Vessel) National Law Act 2012 of the Commonwealth will be effected by proclamation. To the extent possible, the States and the Northern Territory will contemporaneously proclaim the commencement of local legislation to apply the Commonwealth domestic commercial vessel national law in each jurisdiction.

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Part 1 of the Bill includes definitions and interpretative provisions to ensure the applied provisions are interpreted consistently with the interpretation of the Commonwealth domestic commercial vessel national law. This will enhance legal and operational uniformity of the national scheme across all jurisdictions.

Clause 3 defines terms used in the Bill. Definitions used in the Bill are—

applied provisions, which means the Commonwealth domestic commercial vessel national law that applies as a law of Victoria because of the operation of section 4 of the Bill.

Commonwealth administrative laws, which means the following Commonwealth Acts, regulations or other legislative instruments as in force from time to time—

the Administrative Appeals Tribunal Act 1975 (excluding Part IVA);

the Freedom of Information Act 1982;

the Ombudsman Act 1976;

the Privacy Act 1988.

Commonwealth domestic commercial vessel national law, which means—

the Marine Safety (Domestic Commercial Vessel) National Law of the Commonwealth (being the provisions applying as a law of the Commonwealth because of section 4 of the Marine Safety (Domestic Commercial Vessel) National Law Act 2012 of the Commonwealth);

the regulations and other legislative instruments in force under that Law; and

any other provision of a Commonwealth Act (or of a regulation or other legislative instrument in force under a Commonwealth Act) that is of a savings or transitional nature consequent of the enactment or amendment of that Law.

The Marine Safety (Domestic Commercial Vessel) National Law Act 2012 of the Commonwealth provides for other legislative instruments to be made under the Commonwealth domestic commercial vessel national law. Such legislative instruments

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include subordinate instruments known as marine orders made under section 163 of the National Law (Cth).

Marine orders can be used instead of regulations to prescribe certain procedures and mandatory requirements. Except in limited circumstances where the National Law (Cth) requires regulations to be used, marine orders will generally be used to specify mandatory requirements in addition to those specified in the National Law (Cth).

Regulations must be made to prescribe requirements concerning the definition of a domestic commercial vessel (section 7(4) and (5)), the definition of vessel (section 8(3)(a), fees (section 150(1) and accreditation (section 160(1)(a)) of the National Law (Cth).

Marine orders for the national scheme will be made by the Chief Executive Officer of AMSA.

Marine orders are legislative instruments for the purposes of the Legislative Instruments Act 2003 of the Commonwealth. They are subject to review or scrutiny by the Senate Standing Committee on Regulations and Ordinances and subject to possible disallowance by the Commonwealth Parliament.

Subclause (2) provides that terms used in the Bill and in the Commonwealth domestic commercial vessel national law have the same meanings in the Bill as they have in that law.

The intention of this provision is to promote uniformity in the application of the Marine Safety (Domestic Commercial Vessel) National Law and consistency in its operation as a national scheme across all jurisdictions.

Subclause (3) provides that a reference to a Commonwealth Act includes a reference to that Act as amended and in force from time to time including an Act enacted in substitution for that Act as in force from time to time.

PART 2—THE APPLIED PROVISIONS

Clause 4 applies the Commonwealth domestic commercial vessel national law as a law of this State. The Commonwealth domestic commercial vessel national law applies as it is in force from time to time.

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Each jurisdiction that applies the Commonwealth domestic commercial vessel national law will have an equivalent provision in its application statute so that the National Law (Cth) will apply to all commercial vessels in all jurisdictions.

Subclause (2) provides that the Commonwealth domestic commercial vessel national law applies as if it extended to matters in relation to which Victoria may make laws—

whether or not the Commonwealth may make laws in relation to those matters, and

even though the Commonwealth domestic commercial vessel national law provides that it applies only to specified matters with respect to which the Commonwealth may make laws.

The effect of subclause (2) is that the applied provisions extend to those matters in relation to which Victoria may make laws whether or not the Commonwealth has a Constitutional head of power to do so. This supports the application of the Commonwealth domestic commercial vessel national law to those Victorian commercial vessels which are not otherwise within reach of the Commonwealth's powers.

Subclause (3) clarifies that subclause (2) does not operate to exclude a law of Victoria relating to marine safety that would not otherwise be excluded by the Commonwealth domestic commercial vessel national law.

This puts beyond doubt that current Victorian laws that regulate marine safety but which are not directly affected by the Marine Safety (Domestic Commercial Vessel) National Law continue to have effect. An example of this is the Marine (Drug, Alcohol and Pollution Control) Act 1988 and significant parts of the Marine Safety Act 2010.

Subclause (4) provides that regulations made under the Bill may provide that the Commonwealth domestic commercial vessel national law applies as if amendments made to that law by the Commonwealth and specified in the regulations made under the Bill had not taken effect. This reflects the intergovernmental agreement which contains provisions (clauses 20 to 24) requiring the approval of the Standing Council on Transport and Infrastructure on certain matters.

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The Standing Council on Transport and Infrastructure must approve any change to the scope of the National Law (Cth) including those that arise as a consequence of amendments to other legislation.

Further, the intergovernmental agreement provides that if two-thirds of more of the members of the Standing Council on Transport and Infrastructure vote against a piece of subordinate legislation, the National Regulator or as appropriate, the Commonwealth Minister must take steps to withdraw, rescind or amend the legislative proposal or piece of subordinate legislation.

Subclause (4) permits the making of certain regulations under the Bill. Regulations can provide that the National Law (Cth) applies in Victoria as if a change made to the national law which is not approved by the Standing Council on Transport and Infrastructure had not been made.

Similarly, subclause (4) permits the making of regulations under the Bill that provide that a subordinate instrument made under the National Law (Cth) but which has been withdrawn, rescinded or amended by the Commonwealth Minister had not taken effect in Victoria.

The relevant Commonwealth Minister is the Minister for Transport and Infrastructure.

Subordinate legislation includes regulations and marine orders made under section 163 of the National Law (Cth).

The National Law (Cth) contains key definitions which determine the scope of its application.

The cumulative effect of the key definitions of domestic commercial vessel (section 7 of the National Law (Cth)) and vessel (section 8 of the National Law (Cth)) is to capture government vessels (other than Defence Force vessels) and vessels that are used in connection with a commercial or research activity.

Vessels operated by primary or secondary schools and community groups are excluded from the National Law (Cth) unless they are operated for a purpose or use identified in the regulations made under the National Law (Cth).

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Clause 5 applies the Acts Interpretation Act 1901 of the Commonwealth as a law of Victoria in relation to the interpretation of the applied provisions.

Section 15AA of the Acts Interpretation Act 1901 of the Commonwealth requires preference to be given to statutory constructions that promote the purposes or objects underlying the Act in question.

Subclause (2) makes clear that the Interpretation of Legislation Act 1984 does not apply to the applied provisions.

The scrutiny provisions of the Victorian Subordinate Legislation Act 1994 are similarly excluded as a result of the operation of section 109 of the Australian Constitution.

This is consistent with the approach taken in the Victorian Therapeutic Goods Act 2010 in the introduction of a national scheme.

PART 3—FUNCTIONS AND POWERS UNDER APPLIED PROVISIONS

Clause 6 provides that the National Regulator established under the Commonwealth domestic commercial vessel national law and other authorities and officers have the same functions and powers under the applied provisions as they have under the Commonwealth domestic commercial vessel national law.

Section 9 of the National Law (Cth) provides that the National Regulator is AMSA.

Clause 7 provides that any delegation by the National Regulator under the Commonwealth domestic commercial vessel national law is taken to have effect for the purposes of the corresponding provision of the applied law.

The Marine Safety (Domestic Commercial Vessel) National Law enables the National Regulator to delegate certain powers and functions to an officer or employee of a Commonwealth agency, or an officer or employee of a State or Territory agency with the consent of the relevant State or Territory.

The delegation of functions to State and Territory marine safety agencies and their officers and employees is fundamental to the day-to-day operation of the national scheme. It is the employees of the State and Northern Territory marine safety agencies who

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will deliver all or most regulatory services and undertake the investigatory and compliance roles in each jurisdiction, on behalf of the National Regulator.

It is envisaged that the Safety Director will be delegated the functions of the National Regulator in Victoria. Any such delegation is conditional on the acceptance of the Safety Director and the approval of the Minister for Ports.

This is consistent with section 11(7) of the National Law (Cth) which provides that the National Regulator cannot delegate a power or function to an employee of an agency of a State or Territory without the consent of the State or Territory.

The National Regulator may also determine to delegate certain powers under the Australian Maritime Safety Authority Act 1990 of the Commonwealth to certain officers employed or engaged by Transport Safety Victoria.

The Bill enables the Safety Director to authorise certain persons to act as delegate under section 58 of the Australian Maritime Safety Authority Act 1990 of the Commonwealth for the purposes of the Marine Safety (Domestic Commercial Vessel) National Law.

Delegations by the National Regulator must be in writing.

When a delegate of the National Regulator performs a delegated function or exercises a delegated power the activity is deemed to have been performed or exercised by the National Regulator because of the application of section 34AB(c) of the Acts Interpretation Act 1901 of the Commonwealth.

It is envisaged that delegations issued under the Marine Safety (Domestic Commercial Vessel) National Law will include the power to—

assess applications for, and issue, certificates of survey, competence and operations; and

vary, suspend and revoke those certificates; and

appoint marine safety inspectors; and

accredit persons as education and training providers.

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Transport Safety Victoria officers acting as delegates of the National Regulator will be subject to the lawful direction of the National Regulator in exercising powers and functions under the Marine Safety (Domestic Commercial Vessel) National Law and under the Australian Maritime Safety Authority Act 1990 of the Commonwealth.

This is intended to promote national consistency and ensure accountability is maintained in the delivery of the national scheme as part of an overall co-operative national scheme.

The delegation of the National Regulator's powers and functions under the Marine Safety (Domestic Commercial Vessel) National Law will be implemented through an "instrument of delegation" signed by the Chief Executive Officer of AMSA. This will allow powers and functions to be delegated to persons from time to time holding, occupying or performing the duties of a specified office or position.

PART 4—OFFENCES

Clause 8 states that the object of this Part is to further the purpose the Marine (Domestic Commercial Vessel National Law Application) Bill 2013. It does this by providing that an offence against the applied provisions is to be treated as if it were an offence against a law of the Commonwealth.

The purpose of the Bill is set out in clause 1 of the Bill. The purpose, in summary, is to adopt a national approach in Victoria to the regulation of domestic commercial vessels, by applying the Commonwealth domestic commercial vessel national law as a law of Victoria and providing for the consistent administration of the Commonwealth domestic commercial vessel national law and the applied provisions.

Subclause (2) limits the purposes for which an offence is to be treated as if it were an offence against a law of the Commonwealth.

The purposes for which an offence is to be treated as an offence against a Commonwealth law as defined are—

the investigation and prosecution of offences; and

the arrest, custody, bail, trial and conviction of offenders or persons charged with offences; and

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proceedings relating to a matter referred to in either (a) or (b); and

appeals and reviews relating to criminal proceedings and to proceedings of the kind referred to in (c); and

the sentencing, punishment and release of persons convicted of offences; and

fines and penalties and forfeitures; and

infringements notices in connection with offences; and

liability to make reparation in connection with offences; and

proceeds of crime; and

spent convictions.

The intended effect of these provisions is to give the Commonwealth only those powers and functions which are necessary to give effect to the intergovernmental agreement.

Subclause (3) clarifies that such offences include contraventions for which a civil penalty may be imposed.

Clause 9 applies certain Commonwealth laws as laws of Victoria in relation to an offence against the applied provisions as if those provisions were a law of the Commonwealth.

Clause 9 complements clause 8 of the Bill. It does this by limiting the applicable Commonwealth laws to those which are relevant for the purposes set out in clause 8(2). These purposes are relevant to enforcement of the Marine Safety (Domestic Commercial Vessel) National Law.

Subclause (2) provides that an offence against the applied provisions is taken to be an offence against the laws of the Commonwealth and is taken not to be an offence against the laws of Victoria.

Subclause (3) provides that subclause (2) applies unless otherwise provided in regulations made under this Act.

Subclause (4) defines relevant Commonwealth law as a law relating to a purpose set out in section 8(2).

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The effect of clause 9 is that Commonwealth procedures apply in relation to offences under the applied provisions in the Bill. The object is to promote consistency in the enforcement of the Commonwealth domestic commercial vessel national law across the States and Territories.

The Commonwealth domestic commercial vessel national law provides for three categories of offences. The highest category of offences is for a breach of safety duties that is intentional and carries the highest maximum penalty. Other categories of offences are for reckless and negligent breaches, which attract relatively lower penalties commensurate with the level of culpability of the defendant in the circumstances.

Section 5 of the Criminal Code Act 1995 of the Commonwealth defines the meaning of intentional, reckless and negligent, in the context of Commonwealth offence provisions.

Penalties are applied to each category of offence in accordance with the Criminal Code. As outlined in section 4AA of the Crimes Act 1914 of the Commonwealth, one "penalty unit" currently equates to $110.

In addition, Part 7 of the National Law (Cth) provides for the regulations made under the National Law (Cth) to allow an alleged offender to pay a penalty as an alternative to prosecution. The penalty will be one-fifth of the maximum fine imposed by a court for the offence. This provision is intended to allow for effective enforcement of the Commonwealth domestic commercial vessel national law without imposing an unnecessary burden on the court scheme.

Clause 10 is a technical provision concerning the functions and powers conferred on Commonwealth officers or authorities because of the application of relevant Commonwealth laws to an offence against the applied provisions under clause 9 to an offence against the applied provisions.

Clause 10 provides that the functions or powers conferred on a Commonwealth officer or authority under a relevant Commonwealth law (within the meaning of clause 9) in relation to an offence against the Commonwealth domestic commercial vessel national law are also conferred on the officer or authority in relation to an offence against the corresponding provision of the applied provisions.

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Subclause (2) provides that in performing a function or exercising a power conferred by clause 10, the Commonwealth officer or authority must act as nearly as practicable as the officer or authority would act in performing or exercising the same function or power in relation to an offence against the corresponding provision of the Commonwealth domestic commercial vessel national law.

The intention of this provision is to facilitate a national scheme which is administered as seamlessly as possible. It is intended that stakeholders will be treated in the same manner irrespective of whether an officer or authority is acting under the applied provisions or under the Commonwealth domestic commercial vessel national law.

This is also intended to optimise the administrative efficiency of the national scheme by applying similar processes and procedures in all jurisdictions.

Clause 11 provides that a person is not liable to be punished for an offence under the applied provisions in Victoria if the person has been punished for the same offence by the Commonwealth under the Commonwealth domestic commercial vessel national law.

PART 5—ADMINISTRATIVE LAW MATTERS

Clause 12 applies the Commonwealth administrative laws as laws of Victoria to any matter arising in relation to the applied provisions.

Commonwealth administrative laws are defined in clause 3 of the Bill to the following Commonwealth Acts, regulations or other legislative instruments—




the Privacy Act 1988;

the regulations and other legislative instruments in force under any of those Acts.

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Subclause (2) provides that a matter arising in relation to the applied provisions is taken to be a matter arising in relation to the laws of the Commonwealth and not of Victoria.

Subclause (3) limits the effect of subclause (2) where provided for in Part 7 of the Bill and in regulations made under the Bill.

Clause 12 prevents the application to the applied provisions of certain Victorian statutes that may otherwise apply. In particular, the following statutes will not apply to the applied provisions because the Bill provides that the relevant Commonwealth statutes in these areas are to apply—



the Information Privacy Act 2000.

Instead, the Commonwealth administrative laws will apply to the applied provisions, ensuring consistency in the application of the applied provisions and the Commonwealth domestic commercial vessel national law, and more broadly, consistency across jurisdictions in the administration of the national scheme.

Subclause (4) provides that any provision of a Commonwealth administrative law applying because of the proposed clause that purports to confer jurisdiction on a federal court is taken not to have that effect.

This is because the Bill will be a Victorian law and a State cannot purport to confer judicial power on a federal court.

Subclause (4) is a technical provision and is included in accordance with the Federal Courts (State Jurisdiction) Act 1999 and with the High Court decision in Re Wakim: ex parte McNally (1999) 198 CLR 511.

Subclause (5) provides that for the purposes of the proposed section a reference in a provision of the Administrative Appeals Tribunal Act 1975 of the Commonwealth to the whole or any part of Part IVA of that Act is taken to be a reference to the whole or any part of that Part as it has effect as a law of the Commonwealth.

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Part IVA concerns appeals and references of questions of law to the Administrative Appeals Tribunal. Subclause (5) is a technical provision which allows for the proper operation of the Bill and the review of reviewable decisions made under the Marine Safety (Domestic Commercial Vessel) National Law.

Clause 13 provides that a function and power conferred on a Commonwealth officer or authority by a Commonwealth administrative law applying because of clause 12 is also conferred on the officer or authority in relation to a matter arising in relation to the applied provisions.

The Commonwealth administrative laws are defined in clause 3 to mean the following Commonwealth Acts, regulations or other legislative instruments—




the Privacy Act 1988;

the regulations and other legislative instrument in force under any of those Acts.

The effect of this provision is to ensure that a Commonwealth officer or authority has the same powers under these administrative laws in respect of the commercial vessels that fall within the scope as the applied provisions as the officer or authority has in relation to commercial vessels which fall within the scope of the Commonwealth domestic commercial vessel national law.

Subclause (2) provides that in performing a function or exercising a power under this clause the Commonwealth officer or authority must act as nearly as practicable as the officer or authority would act in performing or exercising the same function or power in relation to an offence against the corresponding provision of the National Law (Cth).

The intention of this provision is to facilitate a national scheme which is administered seamlessly. It is intended that stakeholders

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will be treated in the same manner irrespective of whether an officer or authority is acting under the applied provisions or the Commonwealth domestic commercial vessel national law.

PART 6—FEES AND FINES

Clause 14 enables regulations to be made with respect to fees payable to Victoria for things done under the Marine Safety (Domestic Commercial Vessel) National Law by a delegate of the National Regulator who is an officer or employee of, or engaged by, Victoria or an agency of Victoria.

Regulations may also be made in respect of services provided by an accredited person who is an officer or employee of, or engaged by, Victoria or an agency of Victoria.

An accredited person is defined in section 6 of the National Law (Cth) to mean a person who is accredited in accordance with regulations made for the purposes of section 160 of that law. The purposes under section 160 of the National Law (Cth) are matters relating to accreditation and approval.

The national scheme contemplates the accreditation of persons or organisations for certain purposes in accordance with prescribed requirements. These purposes may include the conduct of surveys of domestic commercial vessels and the provision of training for commercial crew qualifications (such as a coxswain's certificate).

Subclause (2) provides that until regulations are made under clause 14 the fees payable for services performed under the Marine Safety (Domestic Commercial Vessel) National Law as delegate for the National Regulator are those set in the Schedule to the Bill.

It is intended that regulations will be made under the Bill to set fees and charges to enable the Safety Director to recover some or all of the costs incurred when delivering functions on behalf of the National Regulator.

However, regulations cannot be made formally until the Bill is passed and receives the Royal Assent. Further, the Subordinate Legislation Act 1994 requires that a regulatory impact statement must be prepared and released for public comment for not less than 28 days for new fees. Accordingly, this process had the

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potential to delay the making of regulations for at least 3 months after the Bill is enacted.

In these circumstances, an alternative approach is necessary. Accordingly, the Bill specifies the fees, rates and charges for services to be provided by the Safety Director under delegation from the National Regulator. This approach ensures that costs incurred by the Safety Director can be recovered as soon as the Marine Safety (Domestic Commercial Vessel) National Law commences.

The fees specified in the Schedule are the same as the fees currently imposed under the Marine Safety Regulations 2012 for equivalent services. These fees will apply in Victoria until cost recovery levels are reviewed and new fee regulations can be made in accordance with the requirements of the Subordinate Legislation Act 1994.

Clause 15 relates to payments into and refunds from the State's Consolidated Fund in respect of infringement notice fines.

Subclause 15(1) requires amounts paid to Victoria by the National Regulator under section 10 of the Marine Safety (Domestic Commercial Vessel) National Law Act 2012 of the Commonwealth to be paid into the Consolidated Fund.

Section 10 of the Marine Safety (Domestic Commercial Vessel) National Law Act 2012 of the Commonwealth applies to amounts paid to the National Regulator under an infringement notice issued by or on the recommendation of a marine safety inspector of a State or Territory. Section 10 requires the National Regulator to pay an amount equivalent to those amounts to the State or the Northern Territory.

Subclause (2) provides that a refund of an amount paid to Victoria by the National Regulator is payable out of the Consolidated Fund.

Clause 16 requires payment to the Commonwealth of any fees, penalties, fines and other amounts payable under the applied provisions. This requirement does not apply to an amount ordered to be refunded to another person.

Subclause (2) provides that payment to the Commonwealth is not required where regulations made under this Act require the fees to be payable to Victoria.

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PART 7—VICTORIAN MODIFICATIONS

Part 7 of the Bill contains a provision unique to the Victorian application Bill. Specifically, Part 7 addresses the application of the Charter of Human Rights and Responsibilities Act 2006 ("the Charter Act)".

Clause 17 provides that the Safety Director is a public authority for the purposes of the Charter Act.

Clause 17 clarifies that the Safety Director acting as delegate of the National Regulator must act in accordance with the Charter Act.

The Charter Act applies to public authorities as defined in section 4 of that Act. Public authorities are subject to obligations in section 38 of the Charter Act to act compatibly with human rights and to give relevant human rights proper consideration when making decisions.

A number of functions are conferred on Commonwealth officers and bodies, particularly the National Regulator. Where the functions and powers are exercised by a Commonwealth officer or body under the Marine Safety (Domestic Commercial Vessel) National Law, the officers and bodies will not fall within the definition of public authority under the Charter Act and the obligations on public authorities will not apply.

However, under section 11 of the National Law (Cth), the National Regulator may delegate powers and functions to officers or employees of a Victorian agency. Pursuant to section 4 of the Charter Act those officers and employees are public authorities. Similarly, under clause 91 of the National Law (Cth), the National Regulator may appoint officers and employees of a Victorian agency as marine safety inspectors.

Clause 17 of the Bill makes clear that, even though those officers and employees may be exercising powers and functions under a Commonwealth Act, they remain public authorities and are therefore bound by the obligations in section 38 of the Charter Act.

The Bill clarifies that the Charter Act applies to the following persons who are public authorities (within the meaning of section 4 of that Act) when they are exercising powers or functions delegated under the applied provisions or the

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Commonwealth domestic commercial vessel national law, or powers delegated under the Australian Maritime Safety Authority Act 1990 of the Commonwealth—

the Safety Director;

a transport safety officer as defined in section 2(1) of the Transport (Compliance and Miscellaneous) Act 1983 who is a public official under the Public Administration Act 2004;

a person employed under Part 3 of the Public Administration Act 2004.

Subclause (2) provides that such a public official who is appointed as a marine safety inspector under the applied provisions or the Commonwealth domestic commercial vessel national law is also a public authority for the purposes of the Charter Act when performing functions and powers under the applied provisions or the Commonwealth domestic commercial vessel national law.

The Safety Director is the head of Transport Safety Victoria (TSV). The Safety Director and staff of TSV who are Victorian public sector employees are public authorities within the meaning of section 4 of the Charter Act.

The clarification made by the Bill does not affect the operation of the Charter Act in respect of public authorities exercising functions under the applied provisions or the Commonwealth domestic commercial vessel national law or the Australian Maritime Safety Authority Act 1990 of the Commonwealth in other contexts. For example, if members of Victoria Police exercise police powers in connection with the Marine Safety (Domestic Commercial Vessel) National Law, they will be public authorities within the meaning of section 4 of the Charter Act.

PART 8—MISCELLANEOUS

Clause 18 provides that documents issued or things done for the purpose of the applied provisions are valid even though they may have also

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been for done for the purpose of the Commonwealth domestic commercial vessel law. In other words those documents or things done may serve the purposes of both statutes simultaneously.

This is consistent with provisions which implemented a national scheme under the Gene Technology Act 2001 (section 20).

Clause 19 provides that references in any Commonwealth law to Commonwealth laws includes a reference to provisions that apply as Commonwealth law because of clauses 8 and 12.

This only applies to clauses 8 and 12 which deal with offences against the applied provisions and with the application of certain Commonwealth administrative laws.

This is a technical provision necessary for ensuring the proper operation of the Bill.

Clause 20 enables certain persons and classes of persons to accept delegations to carry out functions and exercise powers under the Marine Safety (Domestic Commercial Vessel) National Law.

These are—

the Safety Director within the meaning of the Transport Integration Act 2010;

transport safety officers within the meaning of the Transport (Compliance and Miscellaneous) Act 1983, if the officer is—

an officer of an agency of the State within the meaning of the Marine Safety (Domestic Commercial Vessel) National Law; and

authorised by the Safety Director;

a person employed under Part 3 of the Public Administration Act 2004 to enable the Safety director to carry out his or her functions, if authorised by the Safety Director.

Subclause (2) provides that the relevant Minister can only make such an authorisation if satisfied that there are sufficient arrangements in place and resources available to enable the Safety Director to carry out functions and powers delegated by the National Regulator. In making that determination, the

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Minister would place reliance on the existence of an agreement for the provision of services signed by the National Regulator, the local regulator and the Minister.

Subclause (3) provides that authorisations by the Safety Director under clause 20(1)(b) may be made—

in relation to a persons or class of persons specified in the instrument of authorisation; or

in relation to the holder or holder from time to time, of a specified office or of each office in a class of offices specified in the instrument.

The design of the scheme in the intergovernmental agreement contemplates that the National Regulator will delegate day to day regulatory responsibilities back to existing State and Territory marine safety agencies.

In Victoria, this is the Safety Director. This is supported by clause 95 of the Bill which amends the Transport Integration Act 2010 to enable the Safety Director to perform any function or duties conferred on him or her as a delegate of the National Regulator under the Marine Safety (Domestic Commercial Vessel) National Law or the Australian Maritime Safety Authority Act 1990 of the Commonwealth.

The National Regulator may delegate its powers under section 11 of the National Law (Cth). Section 11(1)(b) of the National Law (Cth) limits delegations to an officer or employee of an agency of a State.

The explanation for section 11 is set out at page 26 of the replacement explanatory memorandum which accompanied the national law as a Bill and states—

In practice, powers are intended to be delegated to the head of each marine safety agency in the States and Territories, who would then sub-delegate them to appropriate officers in their jurisdiction.

This is a key and intended feature of the National System agreed by COAG and reflected in Schedule B to the (intergovernmental agreement).

The ability to effect delegation of functions of the National Regulator is fundamental to the day-to-day operation of the national scheme. This involves certain functions being performed by employees of the State and Territory marine safety agencies as delegates of the National Regulator. The delegation must be provided in writing.

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The Safety Director has the capacity under section 11(3) of the National Law (Cth) to subdelegate the powers or functions of the National Regulator that have been delegated to him or her. Any such subdelegation must be to another officer or employee of the agency of which the delegate is an officer or employee.

Clause 93 of the Bill provides that, for the avoidance of doubt, the Safety Director is an officer of the State and is therefore an officer of the agency of the State within the meaning of section 11 of the National Law (Cth).

The effect of clause 93 together with clause 98 of the Bill is to put beyond doubt that the Safety Director can delegate the powers or functions of the National Regulator that have been delegated to him or her under section 11(3) of the National Law (Cth) to transport safety officers and public service employees. This is on the basis that those persons are officers of the same agency, being the agency of the State.

Transport safety officers are appointed under section 228T of the Transport Compliance and Miscellaneous Act 1983. This provides relevantly that the Safety Director may appoint as a transport safety officer any person who is suitably qualified or trained to exercise powers of a transport safety officer under a relevant transport safety law.

The National Regulator may also delegate functions and powers under section 58 of the Australian Maritime Safety Authority Act 1990 of the Commonwealth.

The Bill imposes restrictions on the persons and classes of persons who may be authorised to accept delegations to carry out functions and exercise powers under the Marine Safety (Domestic Commercial Vessel) National Law. This ensures the delegation of powers and functions is not unlimited.

Clause 21 provides that the Governor in Council may make regulations under the Bill for or with respect to—

prescribing forms (including the information to be included in forms); and

prescribing fees for the purposes of section 14; and

generally prescribing any matter or thing required or permitted by the Bill to be prescribed or necessary to be prescribed to give effect to the Bill or the applied provisions.

Subclauses (2) and (3) make further provision in relation to the regulation making power.

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Subclause (4) sets out the manner in which a reduction, waiver or refund of fees may apply.

PART 9—TRANSITIONAL PROVISIONS

Clause 22 enables regulations of a transitional or savings nature to be made consequent on the enactment of the Bill.

Subclause (2) allows the Governor in Council to make regulations which may continue the effect of provisions of the Marine Safety Act 2010 (or any Regulations made under such provisions) that have been repealed by the Bill.

Subclause (3) also permits a provision of regulations made under this clause to be retrospective in operation to a date not earlier than the day on which the Bill receives the Royal Assent. Regulations made under this clause may also be limited or general in their application and leave may matter or thing to be decided by another person or class of person.

Subclause (4) provides that regulations under this clause have effect despite anything to the contrary in any Act (other than this Bill or the Charter of Human Rights and Responsibilities) or in any subordinate instrument.

Subclause (5) provides that this section is repealed on 31 December 2017.

PART 10—AMENDMENT OF THE MARINE SAFETY ACT 2010

Division 1—Preliminary

Introduction

This Division provides for consequential changes to the Marine Safety Act 2010 which are needed as a result of the commencement of the Marine Safety (Domestic Commercial Vessel) National Law.

The Marine Safety Act 2010 is Victoria's primary statute regulating the safe operation of commercial and recreational vessels.

Under the Marine Safety Act 2010 Victoria currently has legislative responsibility for trading vessels on intrastate voyages, fishing vessels on intrastate and interstate voyages and all hire and drive vessels operating in State and Territory waters.

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On commencement of the Marine Safety (Domestic Commercial Vessel) National Law, the Commonwealth will take responsibility for the regulation of commercial vessels in Victoria and amendments need to be made to the Marine Safety Act 2010 to recognise this transfer.

However, the Marine Safety Act 2010 continues to regulate certain aspects of the operation of all commercial vessels in State waters. These include—

local waterway rules;

drug and alcohol controls;

rules dictating when pilots are required to assist with vessel movements; and

harbour masters powers to direct commercial vessels.

The Marine Safety (Domestic Commercial Vessel) National Law will regulate the following broad categories of commercial vessel which are currently regulated under the Marine Safety Act 2010—

trading vessels (used for carriage of passengers or cargo for hire or reward or provision of services to ships, for example, tugs and tenders);

hire and drive vessels (used or intended to be used for hire or reward or other consideration, for example, hired "tinnies", jetskis, sail boards, sail boats, row boats, pedal boats, and self drive vessels including yachts, cabin cruisers and houseboats, used solely for recreational purposes);

fishing vessels (used or intended to be used for catching fish or other living resources of the sea or the seabed for profit or reward).

However, the definition of a domestic commercial vessel under the National Law (Cth) is broader than the definition of commercial vessel under the Marine Safety Act 2010. Examples of vessels which fall within the scope of the national scheme which are not currently regulated as commercial vessels in Victoria are—

vessels operated by government agencies for fisheries enforcement or managing waters;

unpowered barges;

vessels owned and operated by tertiary educational institutions (for example, vessels owned by rowing and diving clubs affiliated with universities);

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unpowered hire and drive vessels (such as canoes, rowing boats, pedal boats or pedalos, sail boards, sail boats etc.).

Amendments to the Marine Safety Act 2010

Clause 23 makes changes to the purposes of the Marine Safety Act 2010 to reflect its revised scope on the commencement of the Marine Safety (Domestic Commercial Vessel) National Law.

Clause 23(a) limits the purpose of the Marine Safety Act 2010 to the registration of recreational vessels (not all vessels).

Clause 23(b) limits the purpose of the Marine Safety Act 2010 to provide for the licensing of masters of regulated hire and drive vessels (not all hire and drive vessels).

Clause 23(c) makes a minor amendment as a consequence of the repeal of paragraphs (h) and (i).

Clause 23(d) repeals provisions requiring compliance with nationally agreed standards for commercial vessels and the masters and crew of such vessels as these are now regulated by the Marine Safety (Domestic Commercial Vessel) National Law.

Clause 24 repeals a number of definitions which are no longer required as a result of the commencement of the Marine Safety (Domestic Commercial Vessel) National Law. The clause also defines a number of terms that are used throughout Part 10 of the Bill and updates references in the Marine Safety Act 2010 to reflect terms which are defined in the Marine Safety (Domestic Commercial Vessel) National Law.

These amendments ensure consistency between the operation of the Bill, the Marine Safety (Domestic Commercial Vessel) National Law and the Marine Safety Act 2010.

Subclause (1) repeals the following definitions because they are relevant to the regulation of commercial vessels which are to be governed by the Marine Safety (Domestic Commercial Vessel) National Law: Australian fishing vessel, commercially operated vessel, commercial vessel, fishing vessel, government vessel, National Standard for Commercial Vessels, National Standard for the Administration of Marine Safety, safe construction certificate, safe operation certificate, trading vessel and Uniform Shipping Laws Code.

Subclause (2) substitutes a new definition of certificate of competency in section 3(1) of the Marine Safety Act 2010 in order to align with the definition in the National Law (Cth).

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The term is defined as having "the same meaning as in the Marine Safety (Domestic Commercial Vessel) National Law".

Subclause (3) updates the reference to the Navigation Act 1912 of the Commonwealth to be a reference to the Navigation Act 2012 of the Commonwealth.

Subclause (4) inserts new definitions for customs vessel, domestic commercial vessel, recreational hire and drive vessel and regulated Australian vessel.

Customs vessel has the same meaning as in section 17 of the Navigation Act 2012 of the Commonwealth. Domestic commercial vessel has the same meaning as in the Marine Safety (Domestic Commercial Vessel) National Law (Cth) and recreational hire and drive vessel has the meaning given by clause 4A of the Bill. Regulated Australian vessel has the same meaning as in section 15 of the Navigation Act 2012 of the Commonwealth.

Subclause (5) substitutes a definition for hire and drive vessel which removes reference to the power under section 7 of the Marine Safety Act 2010 to declare vessels to be hire and drive vessels. This is because hire and drive vessels are to be regulated under the Marine Safety (Domestic Commercial Vessel) National Law.

Subclause (6) amends the definition of marine incident to reflect changes to what is meant by an aid to navigation in the Navigation Act 2012 of the Commonwealth in respect of a marine incident which involves the fouling or damaging by a vessel of any pipeline or submarine cable or such a navigational aid.

Subclause (7)(a) makes a minor amendment to the definition of marine safety work to align with the Marine Safety (Domestic Commercial Vessel) National Law.

Subclause 7(b) changes the definition of marine safety work to exclude vessel operations in respect of commercial vessels which are now subject to the Marine Safety (Domestic Commercial Vessel) National Law.

Subclause (8) amends the definition of permission by repealing references to safe construction and safe operation certificates which are covered by the Marine Safety (Domestic Commercial Vessel) National Law.

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Subclause (9) substitutes a definition of recreational vessel that adopts the definition in new section 4B of the Marine Safety Act 2010 as proposed in clause 25 of the Bill.

Subclause (10) amends the definition of registered person by removing reference to commercial vessels as they are now regulated under the Marine Safety (Domestic Commercial Vessel) National Law.

Subclause (11) amends the definition of regulated hire and drive vessel by limiting its application to recreational hire and drive vessels.

Subclause (12) amends the definition of reportable incident to align with the new definition of marine incident as amended by subclause (6).

Subclause (13) amends part of the definition of a vessel to refer to "a facility within the meaning of Schedule 3 to the Offshore Petroleum and Greenhouse Gas Storage Act 2010" rather than "an off shore industry mobile unit that is not self-propelled".

Clause 25 inserts a new definition of recreational hire and drive vessels as section 4A of the Marine Safety Act 2010.

The purpose of the definition is to make clear that the licensing and safety requirements of the Marine Safety Act 2010 apply to the master of a hire and drive vessel when that vessel is being used in State waters wholly for recreational purposes. This applies even though the vessel is, on the face of it, a commercial vessel. Victoria can regulate hire and drive vessels in certain circumstances where the master of the vessel is the hirer of the vessel because the Commonwealth domestic commercial vessel national law excludes these vessels from regulation in certain circumstances.

Clause 25 also inserts as section 4B of the Marine Safety Act 2010 a new definition of recreational vessel to align with the definition of that term in the National Law (Cth) and ensure the application of the Marine Safety Act 2010 to vessels that are not subject to the Marine Safety (Domestic Commercial Vessel) National Law. This includes vessels owned by primary or secondary schools and certain not for profit community groups.

Subclause (2) provides that a vessel is not a "recreational vessel" if the vessel is a "domestic commercial vessel".

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Subclause (3) clarifies that a vessel cannot be a "recreational vessel" while it is "domestic commercial vessel".

The purpose of these provisions is to promote harmonious and seamless operation of the Marine Safety (Domestic Commercial Vessel) National Law and the Victorian statute. The provisions also ensure clarity as to the nature of a vessel at any one time and therefore clarity as to whether the Commonwealth or Victoria has regulatory responsibility for the vessel.

Clause 26 amends section 7(1) of the Marine Safety Act 2010 to limit the power of the Safety Director to make a declaration as to whether a vessel is a certain class of vessel. The Safety Director can only declare a vessel or a class of vessels to be a recreational vessel for the purposes of the Marine Safety Act 2010 and not a fishing, government, hire and drive or trading vessel.

The Marine Safety (Domestic Commercial Vessel) National Law determines whether a vessel is a domestic commercial vessel. Accordingly, a declaratory power under section 7 of the Marine Safety Act 2010 in respect of classes of vessel other than recreational vessels is no longer needed.

Clause 27 repeals section 8 of the Marine Safety Act 2010 which provides that the Safety Director may declare that a class or type of commercial vessel or hire and drive vessel is suitable for recreational use.

Whether a commercial or hire and drive vessel is suitable for recreational use is a matter for the Marine Safety (Domestic Commercial Vessel) National Law and the declaratory power under section 8 of the Marine Safety Act 2010 is no longer needed.

Clause 28 substitutes a new section 9 in the Marine Safety Act 2010 which sets out the circumstances in which the Marine Safety Act 2010 applies.

The new section 9 provides that unless specifically provided otherwise by a provision of the Marine Safety Act 2010, the Marine Safety Act 2010 applies to the following vessels and the owner, master and crew of any such vessel—

a vessel within State waters; and

a vessel connected with Victoria, wherever it may be.

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Subclause (2) clarifies that the Marine Safety (Domestic Commercial Vessel) National Law prevails over the Marine Safety Act 2010 to the extent of any inconsistency.

Subclause (3) details the ways in which a vessel may be connected with Victoria.

Clause 29 limits the principle of shared responsility for marine safety provided in section 15 of the Marine Safety Act 2010. It removes the reference to the "suppliers of vessel operations to owners of domestic commercial vessels" as having shared responsibility for marine safety in accordance with the Marine Safety Act 2010 as these suppliers are covered by the Marine Safety (Domestic Commercial Vessel) National Law.

Division 2—Marine Safety Duties

This Division makes largely technical changes to the Marine Safety Act 2010 so that general safety duties under that Act do not apply to commercial vessels covered by the Marine Safety (Domestic Commercial Vessel) National Law.

Clause 30 makes a technical change to the heading of Part 2.2 of the Marine Safety Act 2010 to omit reference to owners of commercially operated vessels.

Clause 31 repeals section 25 of the Marine Safety Act 2010 which sets out the main safety duties of owners of commercial and hire and drive vessels in relation to the safety of the vessels, equipment and the operations for which the vessels are used. These matters are covered by the Marine Safety (Domestic Commercial Vessel) National Law.

Clause 32 clarifies that safety duties under the Marine Safety Act 2010 in relation to design, manufacture and supply of vessels only apply in respect of recreational (and not commercial) vessels.

Clause 33 similarly clarifies that safety duties under the Marine Safety Act 2010 in relation to design, manufacture and supply of marine safety equipment only apply in respect of marine safety equipment supplied to recreational (and not commercial) vessels.

Clause 34 substitutes a new section 29 into the Marine Safety Act 2010. This section formerly applied to all suppliers of vessel operations but now applies only to suppliers of pilotage services. This is because pilotage service providers continue to be regulated under

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the Marine Safety Act 2010 and not under the Marine Safety (Domestic Commercial Vessel) National Law.

Subclause (1) provides that a supplier of pilotage services who is not a marine safety worker providing services to owners of domestic commercial vessels must, so far as is reasonably practicable, ensure the safety of those services.

Pilotage services suppliers contravene this duty if they operate, or cause or allow to be operated, a domestic commercial vessel when it is an unsafe vessel or when it is so loaded that the load line marked on the vessel is submerged.

If a pilotage service providers supplying pilotage services to an owner of a commercial vessel contravenes subclause (1) the provider is guilty of an indictable offence and is liable to a fine not exceeding 1800 penalty units (for a natural person) or 9000 penalty units (for a body corporate).

These penalty levels are the same as currently apply under section 29 of the Marine Safety Act 2010.

Clause 35 omits "25" from subsection (6) of section 30 of the Marine Safety Act 2010 which states that "regulated entity" means a person to whom certain sections apply.

Section 25 of the Marine Safety Act 2010 concerns the safety duties of owners of commercial operated vessels. This is a matter for the Marine Safety (Domestic Commercial Vessel) National Law and section 25 is repealed by clause 31 of the Bill. Clause 35 makes a minor technical change to remove reference to the repealed section in section 30(6) of the Marine Safety Act 2010.

Clause 36 amends the heading to Part 2.5 of the Marine Safety Act 2010 to insert "recreational" before "hire". This is a minor technical change needed to reflect the changed scope of Part 2.5 of the Marine Safety Act 2010.

The Marine Safety (Domestic Commercial Vessel) National Law regulates hire and drive vessels as commercial vessels. However, hire and drive vessels are excluded from the application of certain aspects of the national law where the master of the vessel is the hirer of the vessel. As a result, it is necessary to amend the scope of Part 2.5 of the Marine Safety Act 2010 so that it applies only to hire and drive vessels that are excluded from the application of the Marine Safety (Domestic

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Commercial Vessel) National Law (recreational hire and drive vessels).

Clause 37 amends the heading and body of section 31 of the Marine Safety Act 2010 to refer to recreational hire and drive vessels instead of hire and drive vessels.

Subclause (1) amends the heading to accord with the change made by subclause (2) which specifies that a duty under that section to take reasonable care only applies to masters of recreational or recreational hire and drive (and not commercial) vessels.

Subclause (3) makes changes to section 31(2) of the Marine Safety Act 2010 to extend the offence to masters of recreational hire and drive vessels.

Subclause (4) makes changes to section 31(3) of the Marine Safety Act 2010 to also apply to a master of a recreational hire and drive vessel. When determining whether a master of a recreational hire and drive vessel failed to take reasonable care, regard must be had to what the master of that vessel knew about the relevant circumstances.

Clause 38 makes a technical change by removing references to hire and drive vessels in section 32 of the Marine Safety Act 2010. Hire and drive vessels are regulated by the Marine Safety (Domestic Commercial Vessel) National Law.

Section 32 imposes a duty on persons participating in the operation of a recreational vessel when carrying out vessel operations under the direction of a master to take reasonable care for his or her own safety and to not wilfully or recklessly place the safety of another person at risk which would otherwise overlap with the Marine Safety (Domestic Commercial Vessel) National Law.

Clause 39 clarifies that safety duties under section 33 of the Marine Safety Act 2010 only apply to passengers on board recreational (and not commercial) vessels.

Division 3—Operation of vessels

This Division makes changes to the registration requirements under the Marine Safety Act 2010 to put beyond doubt that they apply only to recreational vessels on commencement of the Marine Safety (Domestic Commercial Vessel) National Law.

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Clauses 40 to 48 clarify that registration is a requirement that applies to recreational and not domestic commercial vessels and makes technical changes to this effect to sections of the Marine Safety Act 2010.

Clause 40 substitutes "recreational vessels" for "vessels", and "recreational vessel" for "vessel" in section 36 of the Marine Safety Act 2010. The effect of this is to limit the purposes for registration under the Marine Safety Act 2010 to those relating to recreational vessels and not all vessels.

Clause 41 Subclause (1) is a minor technical change. It amends the heading to section 37 of the Marine Safety Act 2010 by substituting "recreational vessel" for "vessel".

Subclause (2) substitutes "a recreational vessel" for "a vessel" wherever occurring. The effect of clause 41 is to limit the offence of an owner failing to register a vessel to recreational vessels, rather than all vessels.

Clause 42 Subclause (1) is a minor technical change. It amends the heading to section 38 of the Marine Safety Act 2010 by substituting "recreational vessel" for "vessel".

Subclause (2) substitutes "a recreational vessel" for "a vessel". The effect of clause 42 is to limit the capacity to register vessels in one name only to recreational vessels, rather than all vessels.

Clause 43 amends sections 39(2) and 39(3) of the Marine Safety Act 2010. The effect is to limit registration, renewal and transfer of registration to recreational vessels. Subsection (2) requires the Safety Director to register a vessel in respect of which an application for registration has been made if certain requirements are met by the applicant. Clause 43 limits the obligation of the Safety Director so that it applies only in respect of recreational vessels and not all vessels.

Subsection (3) provides that regulations made under the Marine Safety Act 2010 must not require the payment of fees rates or charges for the registration of vessels used for certain purposes. Clause 43 limits that restriction to fees rates or charges in respect of recreational vessels used for those purposes, and not all vessels.

Clause 44 amends section 40 of the Marine Safety Act 2010 by substituting "a recreational vessel" for "a vessel" where twice occurring. Section 40 enables the Safety Director to impose conditions on registration of a vessel. Clause 44 limits this to

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capacity to impose conditions on registration of a recreational vessel and not of all vessels.

Clause 45 amends sections 41(1) and 41(2) of the Marine Safety Act 2010 by substituting "recreational vessel" for "vessel". Section 41 enables the Safety Director to prescribe conditions for registration in respect of a class or type of vessel. Clause 45 limits that capacity to recreational vessels and not all vessels.

Clause 46 Subclause (1) makes a minor technical amendment to the heading of section 42 of the Marine Safety Act 2010 by substituting "recreational vessels" for "vessels".

Subclause (2) amendments section 42 of the Marine Safety Act 2010 by substituting "recreational vessels" for "vessels" wherever occurring. Section 42 of the Marine Safety Act 2010 requires the Safety Director to establish and maintain a register of all registered and previously registered vessels. The effect of clause 46 is to limit this obligation to apply in respect of recreational vessels only and not all vessels.

Clause 47 Subclause (1) makes a minor technical change to the heading to section 43 of the Marine Safety Act 2010 by substituting "recreational vessel" for "vessel".

Subclause (2) amends section 43(1) of the Marine Safety Act 2010 by substituting "recreational vessel" for "vessel".

Subclause (3) amends section 43(2) of the Marine Safety Act 2010 by substituting "recreational vessel" for "vessel" where first occurring.

Subclause (4) amends section 43(4) of the Marine Safety Act 2010 by substituting "recreational vessel" for "vessel".

Section 43 of the Marine Safety Act 2010 provides that the Safety Director must cancel the registration of a vessel in certain circumstances. The effect of clause 47 of the Bill is to limit that obligation so that it applies in respect of recreational vessels only and not all vessels.

Clause 48 amends section 44(1) of the Marine Safety Act 2010. It does this by substituting "recreational vessel" for "vessel".

Section 44(1) of the Marine Safety Act 2010 provides that a court convicting a person of a certain offence may order cancellation of the registration of the vessel. The offence is

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contained in section 60 of the Marine Safety Act 2010. Section 60 provides that it is an offence to be a master of a registered recreational vessel while under suspension or disqualification.

Clause 48 limits the capacity of the court to order cancellation of the registration of a recreational vessel only and not all vessels.

Clause 49 makes a change to the heading of Part 3.2 of the Marine Safety Act 2010 to clarify that its provisions apply only to regulated hire and drive vessels.

Clause 50 repeals Part 3.3 of the Marine Safety Act 2010 in its entirety as certification and operation of commercial vessels is regulated under the Marine Safety (Domestic Commercial Vessel) National Law.

Clause 51 amends the heading to Part 3.4 of the Marine Safety Act 2010 to reflect the repeal of Division 1 of that Part under clause 52 of the Bill.

Clause 52 repeals Division 1 of Part 3.4 of the Marine Safety Act 2010 which provides for certificates of competency. Certificates of competency are provided for under the Marine Safety (Domestic Commercial Vessel) National Law and the provisions of the Marine Safety Act 2010 are no longer required.

Clause 53 amends section 80 of the Marine Safety Act 2010 by inserting the word "domestic" before the word "commercial" so that the offence of navigating a vessel without a local knowledge certificate in waters (where such a certificate is required) applies to masters of domestic commercial vessels.

Local knowledge certificates are required when particular vessels operate in declared waters and when operating a specified type of vessel.

In general, local knowledge certificates are required by the masters of large vessels (e.g. over 35 metres in length) proposing to operate in areas where channel width and depth is limited or other hazards exist. In such circumstances, local knowledge is critical to facilitating safe marine operations.

Clause 54 amends section 82(1) of the Marine Safety Act 2010 by inserting the word "domestic" before the word "commercial" to enable a master of a domestic commercial vessel to apply to the Safety Director for the issue of a local knowledge certificate.

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Clause 55 repeals section 86 of the Marine Safety Act 2010 which imposes obligations and provides for offences in relation to loadlines. Loadlines is a concept relevant to commercial vessels only and is covered by the Marine Safety (Domestic Commercial Vessel) National Law.

Clause 56 makes a technical change to section 87(1) of the Marine Safety Act 2010 to omit reference to government or hire and drive vessels which are covered by the Marine Safety (Domestic Commercial Vessel) National Law.

Subclause (2) inserts new section 87(2A) after section 87(2) of the Marine Safety Act 2010. Section 87(2A) provides a new offence where a master of a recreational hire and drive vessel operates the vessel at a speed or in a manner which is dangerous to the public, having regard to all the circumstances in the case. This change reflects the use of the new defined term of "recreational hire and drive vessel".

The maximum penalty for an offence against section 87(2A) is 240 penalty units or imprisonment for two years.

Subclause (2) also inserts new section 87(2B) of the Marine Safety Act 2010. Section 87(2B) provides that section 87(2A) does not apply to a person who is complying with the Marine Safety (Domestic Commercial Vessel) National Law.

Subclause (3) makes a technical amendment to sections 87(3) to omit references to "government or hire and drive vessels" as these are covered by the Marine Safety (Domestic Commercial Vessel) National Law.

Subclause (4) omits reference to masters of government vessels but includes masters of recreational hire and drive vessels. As a result, the masters of such vessels can be prosecuted if they know that the vessel is unsafe.

Clause 57 amends section 91 of the Marine Safety Act 2010 so that it applies in respect of recreational vessels only. Section 91 requires masters to assist persons in distress in certain circumstances.

Subclause (2) removes reference to a certificate of competency in section 91(2) of the Marine Safety Act 2010 which is no longer needed as it is not a relevant operational requirement for a recreational vessel.

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Clause 58 removes reference to a certificate of competency in section 93(7) of the Marine Safety Act 2010 which is no longer needed as it is not a relevant operational requirement for a recreational vessel. This is required as cancellation of a certificate of competency is dealt with under the Marine Safety (Domestic Commercial Vessel) National Law.

Clause 59 substitutes "domestic commercial vessel or regulated Australian vessel, other than a vessel that is a customs vessel" for "commercially operated vessel" in section 94 of the Marine Safety Act 2010.

The effect of clause 59 is to ensure that vessels which currently fall within the definition of commercial vessel within the meaning of the Marine Safety Act 2010 but do not fall within the scope of the definition of domestic commercial vessel under the Marine Safety (Domestic Commercial Vessel) National Law remain subject to a requirement to report certain marine incidents to the Safety Director. These include incidents involving death or serious injury or property damage.

Clause 60 substitutes a new section 95 in the Marine Safety Act 2010. The new section 95 provides new definitions of Prevention of Collisions Convention and Safety Convention. These terms are defined to have the same meaning as in the Navigation Act 2012 of the Commonwealth.

Clause 61 substitutes a new section 96(1) of the Marine Safety Act 2010 to continue the capacity of the State to make regulations giving effect to the Prevention of Collisions Convention with respect to certain vessels when in State waters. These vessels are domestic commercial vessels and regulated Australian vessels, other than vessels that are customs vessels.

Clause 62 substitutes a new section 97(1) into the Marine Safety Act 2010. Section 97(1) provides for the making of regulations giving effect to the Safety Convention as defined in clause 60 and updates the provision to reflect the new Navigation Act 2012 of the Commonwealth.

Subclause (1) provides power to make regulations giving effect to provisions set out in Chapter V of the Regulations contained in the Annex to the Safety Convention (other than regulation 13 or 15 of that Chapter of those Regulations) with respect to—

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a domestic commercial vessel; or

a recreational vessel; or

a facility within the meaning of Schedule 3 to the Offshore Petroleum and Greenhouse Gas Storage Act 2010.

Subclause (2) amends section 97(2) of the Marine Safety Act 2010 by omitting ", except in the case of an Australian fishing vessels,".

This is required as a consequence of the repeal of the definition in section 3(1) of the Marine Safety Act 2010 of Australian fishing vessel. This repeal is brought about by clause 24 of the Bill.

Clause 63 substitutes a new section 98(4) of the Marine Safety Act 2010. Section 98(4) updates the reference to the regulation making power under the Navigation Act 2012 of the Commonwealth. The reference in section 98(3)(a) to "regulations" includes orders made under section 342 of the Navigation Act 2012 of the Commonwealth rather than section 425(1AA) of the Navigation Act 1912 of the Commonwealth.

Clause 64 repeals the note at the foot of section 99(2) of the Marine Safety Act 2010. The note references the Navigation Act 1912 of the Commonwealth which has been replaced by the Navigation Act 2012 of the Commonwealth.

Division 4—Enforcement

This Division makes changes to the Marine Safety Act 2010 for consistency with the enforcement provisions in the Marine Safety (Domestic Commercial Vessel) National Law and to avoid any overlap.

Clause 65 clarifies that the police power to prohibit operation of vessels under Division 4 Enforcement of the Marine Safety Act 2010 applies only in respect of recreational hire and drive vessels (not all hire and drive) vessels. This is because while hire and drive vessels are regulated under the Marine Safety (Domestic Commercial Vessel) National Law, in some circumstances, recreational hire and drive vessels are excluded from the

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application of the Marine Safety (Domestic Commercial Vessel) National Law.

Clause 66 repeals section 165(1)(b) of the Marine Safety Act 2010. This removes a ground on which the Safety Director may take disciplinary action against a person holding a permission. The ground removed is failing to comply with National Standards for Commercial Vessels or the Uniform Shipping Laws Code as these apply only to commercial vessels.

Clause 67 amends section 173 of the Marine Safety Act 2010 by substituting "domestic commercial vessel operations" for "commercial vessel operations". Section 173 provides an option for a court to make adverse publicity orders.

Section 173 of the Marine Safety Act 2010 currently applies where a person has been found guilty of an offence against a relevant marine safety law arising out of commercial marine operations.

Commercial marine operations may take place while vessels are in Victorian State waters. An example of where a court may determine to make such an order is where a commercial vessel operator providing tourist cruises in local rivers repeatedly breaches drug and alcohol requirements. The Victorian Marine (Drug, Alcohol and Pollution Control) Act 1988 continues to regulate drug and alcohol use for commercial vessel operators when those vessels operate in State waters.

The effect of clause 67 is to enable the current range of available sanctions for offences under the Marine Safety Act 2010 to continue to the extent consistent with the Marine Safety (Domestic Commercial Vessel) National Law.

Clause 68 restricts the purpose of Part 4.7 of the Marine Safety Act 2010 to establishing an owner onus system for offences arising out of the operation of recreational vessels instead of all vessels.

Clause 69 makes a technical change to section 176 of the Marine Safety Act 2010 to make it clear that owner onus offences created by or under the Marine Safety Act 2010 are limited to recreational vessels instead of all vessels.

Division 5—General

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This Division of the Bill makes changes to certain provisions of the Marine Safety Act 2010 for the purpose of harmonisation and consistency with the Marine Safety (Domestic Commercial Vessel) National Law.

Clause 70 substitutes a new section 258(1)(d) to the Marine Safety Act 2010.

Section 258 describes the functions of the Safety Director under the Transport Integration Act 2010. These functions are only those which are necessary for the Safety Director to perform his or her regulatory role under the Marine Safety Act 2010 and which are not already contained in the Transport Integration Act 2010.

The new section 258(1)(d) of the Marine Safety Act 2010 enables the Safety Director to develop appropriate standards for the safe construction, equipment and operation of recreational vessels and to take steps to ensure that those standards are maintained.

Subclause (2) repeals section 258(1)(e) of the Marine Safety Act 2010. This section currently provides the Safety Director with a function in relation to certificates of safe operation, construction and crewing. These matters are regulated under the Marine Safety (Domestic Commercial Vessel) National Law.

Subclause (3) amends section 258(1)(g) of the Marine Safety Act 2010 by omitting reference to certificates of competency. Determining the fitness of a person to hold a certificate of competency will be regulated by the Marine Safety (Domestic Commercial Vessel) National Law.

Subclause (4) inserts a note to section 258(1) of the Marine Safety Act 2010 to clarify that the Safety Director may also have functions as a delegate under the Marine Safety (Domestic Commercial Vessel) National Law.

Clause 71 makes a minor technical change to section 281(1)(d) of the Marine Safety Act 2010 to reflect terminology used in the Marine Safety (Domestic Commercial Vessel) National Law. Clause 71 inserts the word "domestic" before "commercial" in section 281(1)(d) to require the Safety Director to consult with masters of domestic commercial vessels when developing or reviewing the Marine Enforcement Policy.

Clause 72 repeals section 295 of the Marine Safety Act 2010. Section 295 concerns the production as evidence of documents which concern commercial vessels. An example is an extract of a provision of

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the Uniform Shipping Laws Code. Section 295 is no longer required as it concerns matters that are governed under the Marine Safety (Domestic Commercial Vessel) National Law.

Clause 73 repeals section 300 of the Marine Safety Act 2010 which provides for matters related to nationally agreed standards. These are matters which are relevant only to commercial vessels and section 300 of the Marine Safety Act 2010 is no longer needed.

Clause 74 inserts a new section 306(2)(ba) of the Marine Safety Act 2010. The new section enables the disclosure or use of information gained by the Safety Director under section 306 of the Marine Safety Act 2010.

New section 306(2)(ba) provides that section 306 does not prevent the disclosure or use of information if the disclosure or use is to the National Regulator or any delegate of the National Regulator for a purpose relating to the administration or enforcement of that law or marine safety.

New section 306(2)(ba) of the Marine Safety Act 2010 complements section 152 of the National Law (Cth). Section 152 permits the disclosure of information that may be relevant to the administration of the law by persons undertaking specific roles or providing specific services to the National Regulator. This permission applies to a delegate or sub-delegate of the National Regulator, marine safety inspectors and persons accredited or training organisations approved under the Marine Safety (Domestic Commercial Vessel) National Law.

The requirements in the Marine Safety (Domestic Commercial Vessel) National Law to provide information are essential to the regulatory regime facilitating correct identification and subsequent monitoring and enforcing statutory compliance of the vessel and its owner and/or operator.

Similarly, new section 306(2)(ba) of the Marine Safety Act 2010, which allows disclosure or use of information by the Safety Director, is essential to implementation of the national scheme as without it the Safety Director will be unable to share data or information with the National Regulator or other regulators across Australia who are also acting as delegates of the National

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Regulator. This would impede a national approach to the regulation of domestic commercial vessels which is the objective of the Bill.

Clause 75 repeals section 309(5) of the Marine Safety Act 2010 which provides a general regulation making power in respect of the Uniform Shipping Laws Code, the National Standard for Commercial Vessels and the National Standard for Administration of Marine Safety. These matters are only relevant to commercial vessels and are covered by the Marine Safety (Domestic Commercial Vessel) National Law.

Division 6—Transitional

Clause 76 inserts a new Part 9.3 into the Marine Safety Act 2010. Part 9.3 provides transitional and savings provisions for the Bill. In particular, Part 9.3 provides for the recognition for a limited period of applications for commercial vessel certifications which are being determined at the commencement of the Marine Safety (Domestic Commercial Vessel) National Law.

Clause 76 inserts new sections 374A, 374B and 374C into the Marine Safety Act 2010. These sections provide that certain applications which have been made but not determined by the Safety Director under the Marine Safety Act 2010 at the commencement of certain sections of the Bill can continue to be dealt with under the Marine Safety Act 2010. These applications are respectively for a safe construction certificate, safe operation certificate or certificate of competency.

The effect of clause 76 is that any such applications can continue to be dealt with by the Safety Director notwithstanding the repeal of Part 3.3 of the Marine Safety Act 2010 and the repeal of Division 1 of Part 3.4 of the Marine Safety Act 2010 effected by clauses 50 and 52 of the Bill.

Safe construction certificates

The proposed subsection 374A(2) provides that section 374A of the Marine Safety Act 2010 ceases to have effect at the end of 6 months after certain sections of the Bill commence. This allows the Safety Director a period of 6 months in which to finalise determinations of applications for safe construction certificates.

The proposed subsections 374A(3) clarifies that for the purposes of sections 374A, commencement day means that date of commencement of sections 24(8) and 50 of the Marine

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(Domestic Commercial Vessel National Law Application) Act 2013.

Section 24(8) of the Marine (Domestic Commercial Vessel National Law Application) Act 2013 repeals paragraph (f) of the definition of permission in section 3(1) of the Marine Safety Act 2010. Paragraph (f) refers to "a safe construction certificate".

Section 50 of the Marine (Domestic Commercial Vessel National Law Application) Act 2013 repeals Part 3.3 of the Marine Safety Act 2010. Part 3.3 of the Marine Safety Act 2010 deals with the certification of commercial vessels and their operation and is no longer needed as these are matters for the Marine Safety (Domestic Commercial Vessel) National Law.

Safe operation certificates

The proposed subsection 374B(2) of the Marine Safety Act 2010 provides that section 374B ceases to have effect at the end of 6 months after certain sections of the Bill commence. This allows the Safety Director a period of 6 months in which to finalise determinations of applications for safe operation certificates.

The proposed subsections 374B(3) clarifies that for the purposes of sections 374B, commencement day means that date of commencement of sections 24(8) and 50 of the Marine (Domestic Commercial Vessel National Law Application) Act 2013.

Section 24(8) of the Marine (Domestic Commercial Vessel National Law Application) Act 2013 repeals paragraph (g) of the definition of permission in section 3(1) of the Marine Safety Act 2010. Paragraph (g) refers to "a safe operation certificate".

Section 50 of the Marine (Domestic Commercial Vessel National Law Application) Act 2013 repeals Part 3.3 of the Marine Safety Act 2010. Part 3.3 of the Marine Safety Act 2010 deals with the certification of commercial vessels and their operation and is no longer needed as these are matters for the Marine Safety (Domestic Commercial Vessel) National Law.

Certificates of competency

The proposed subsection 374C(2) of the Marine Safety Act 2010 provides that section 374C ceases to have effect at the end of 6 months after certain sections of the Bill commence.

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This allows the Safety Director a period of 6 months in which to finalise determination of applications for certificates of competency.

The proposed subsections 374C(3) clarifies that for the purposes of section 374C, commencement day means that date of commencement of sections 24(2) and 52 of the Marine (Domestic Commercial Vessel National Law Application) Act 2013.

Section 24(2) of the Marine (Domestic Commercial Vessel National Law Application) Act 2013 substitutes a new definition of certificate of competency in section 3(1) of the Marine Safety Act 2010 in order to align with the definition in the Marine Safety (Domestic Commercial Vessel) National Law. This definition provides that certificate of competency has the same meaning as in the Marine Safety (Domestic Commercial Vessel) National Law.

Section 52 repeals Division 1 of Part 3.4 of the Marine Safety Act 2010 which provides for certificates of competency. Certificates of competency are provided for under the Marine Safety (Domestic Commercial Vessel) National Law and the provisions of the Marine Safety Act 2010 are no longer required.

Division 7—Amendments to Schedules

Clause 77 amends Schedule 1 to the Marine Safety Act 2010 which sets out particular powers of the Safety Director to repeal those powers which are relevant to the regulation of commercial vessels and are no longer needed.

Clause 77 repeals items 1, 2, 3, 13, 14, 18 and 19 and adjustments are made to the headings preceding items 1, 13, 14, and 18 to reflect the changes or clarify that the item relates only to recreational vessels (item 15).

Clause 78 amends Schedule 2 of the Marine Safety Act 2010, which sets out the subject matters for regulations which can be made pursuant to sections 309, 310, 311 and 312 of that Act to repeal those matters which are relevant to the regulation of commercial vessels and are no longer needed.

Clause 78 further repeals items 1, 2, 3, 12, 13, 14, 15, 17, 18, 56 to 65, 67, 68, 73 and 85 to 87. Adjustments are also made to the headings preceding items 1, 12, 16, 25, 56, 66, 75 and 85 to reflect the changes or clarify that the item relates only to

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recreational vessels (items 16, 19, 25, 26, 27, 28, 30, 32, 33, 66, 69 and 74).

Division 9—Statute law revision and repeal of Part

Clause 79 of the Bill makes a minor statute law revision to the Marine Safety Act 2010. This amendment is to substitute "or (3)" for "or (2)" in section 269(4) of the Marine Safety Act 2010 to correct an internal reference within that section.

Clause 80 provides for the repeal of Part 9 of the Bill on the first anniversary of the first day on which all of the provisions of the Part are in operation. Part 9 of the Bill makes transitional and savings arrangements to support smooth commencement of the Bill.

It is noted that the repeal of this Part does not affect the continuing operation of the amendments made by it in accordance with section 15(1) of the Victorian Interpretation of Legislation Act 1984.

PART 11—AMENDMENT OF OTHER ACTS

Clause 81 amends the Environment Protection Act 1970 to update a reference to how the usual or last known residential or business address of an alleged offender may be determined for the purpose of notices to be served under that Act.

Clause 81 substitutes a new section 61(1B)(b) into the Environment Protection Act 1970 to provide that that in the absence of evidence to the contrary, the usual or last known residential or business address of an alleged offender in the case of an offence alleged against the registered owner of a vessel is—

for a recreational vessel as defined in section 3 of the Marine Safety Act 2010, the address in the certificate of registration of the vessel;

for a domestic commercial vessel as defined in section 3 of the Marine Safety Act 2010, the address in the certificate of survey. The certificate of survey is that certificate in force for the time being under the Marine Safety (Domestic Commercial Vessel) National Law.

Clause 82 is consequential to clause 12(4) of the Bill. It amends section 3 of the Federal Courts (State Jurisdiction) Act 1999 by inserting reference to the Marine Safety (Domestic Commercial

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Vessel National Law Application) Act 2012 of the Commonwealth.

Clause 82 does this by including the Bill (once it is proclaimed an Act) in the definition of "relevant State Act" for the purposes of the Federal Courts (State Jurisdiction) Act 1999.

This recognises that a provision of the Bill that purports to confer jurisdiction on a federal court does not have that effect.

Clause 12(4) of the Bill provides that any provision of a Commonwealth administrative law applying because of clause 12 of the Bill that purports to confer jurisdiction on a federal court is taken not to have that effect.

This is because the Bill will be a Victorian law and a State cannot purport to confer judicial power on a federal court.

This is a technical provision and is included in accordance with the Federal Courts (State Jurisdiction) Act 1999 and with the High Court decision in Re Wakim: ex parte McNally (1999) 198 CLR 511.

Clause 83 updates the Interpretation of Legislation Act 1984 to recognise the proposed commencement of the national scheme by inserting a reference to the Marine Safety (Domestic Commercial Vessel) National Law.

Clause 83 inserts new section 38I into the Interpretation of Legislation Act 1984. This section provides a definition of the term Marine Safety (Domestic Commercial Vessel) National Law so the term can be used in an Act or subordinate instrument to refer to the Marine Safety (Domestic Commercial Vessel) National Law.

This term is defined in section 3 of the Bill to mean the Marine Safety (Domestic Commercial Vessel) National Law of the Commonwealth, being the provisions applying as a law of the Commonwealth because of section 4 of the Marine Safety (Domestic Commercial Vessel) National Law Act 2012 of the Commonwealth. It includes regulations or other legislative instruments in force under that law, together with any other provision of a Commonwealth Act (or of a regulation or other legislative instrument in force under a Commonwealth Act) that is of a savings or transitional nature consequent on the enactment or amendment of that Law; and

the applied provisions as defined in section 3 of the Bill, meaning the Commonwealth domestic commercial vessel

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national law that applies as a law of Victoria because of section 4 of the Bill.

Division 4—Amendment of Marine (Drug, Alcohol and Pollution Control) Act 1988

Clause 84 makes consequential changes to section 3(1) of the Marine (Drug, Alcohol and Pollution Control) Act 1988 to ensure alignment with and consistency between the operation of that Act, the Bill and the Marine Safety (Domestic Commercial Vessel) National Law. This is essential to ensure clarity between the Commonwealth and Victoria about responsibilities for aspects of the regulation of domestic commercial vessels which remain with Victoria.

Clause 84(1) repeals the definitions of Australian fishing vessel, commercial vessel, fishing vessel, government vessel and trading vessel. These definitions are relevant to the regulation of commercial vessels and are no longer required.

Clause 84(1) also substitutes new definitions of certificate of competency and domestic commercial vessel to align with the Marine Safety (Domestic Commercial Vessel) National Law. New definitions of hire and drive vessel, recreational vessel and National Regulator are inserted and have the same meaning as in the Marine Safety Act 2010.

Subclause (1)(e) amends the definition of prescribed concentration of alcohol in paragraph (a)(ii) of section 3(1) of the Marine (Drug, Alcohol and Pollution Control) Act 1988. Subclause (1)(e) recognises the change in terminology effected by the Marine Safety (Domestic Commercial Vessel) National Law and substitutes "domestic commercial vessel" for "commercial or government vessel".

Subclause (1)(f) substitutes the definition of recreational vessel in section 3(1) of the Marine (Drug, Alcohol and Pollution Control) Act 1988 with a new definition which provides that recreational vessel has the same meaning as in the Marine Safety Act 2010.

Subclause (2) repeals section 3(3)(c) of the Marine (Drug, Alcohol and Pollution Control) Act 1988. Paragraph (c) is no longer required as the definition of recreational vessel is being substituted by subclause (1)(f).

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Clause 85 substitutes section 6 of the Marine (Drug, Alcohol and Pollution Control) Act 1988. The effect of the new section 6 is to align the application of that Act with the application of the Marine Safety Act 2010.

The application of the Marine Safety Act 2010 is amended by clause 28 of the Bill to reflect a change in scope to remove regulatory responsibility for domestic commercial vessels on commencement of the Marine Safety (Domestic Commercial Vessel) National Law.

Clause 85 substitutes a new section 6 in the Marine (Drug, Alcohol and Pollution Control) Act 1988 which sets out the application of that Act.

The new section 6 provides that unless specifically provided otherwise by a provision of the Marine (Drug, Alcohol and Pollution Control) Act 1988, the Marine (Drug, Alcohol and Pollution Control) Act 1988 applies to the following vessels and the owner, master and crew of any such vessel—

a vessel within State waters; and

a vessel connected with Victoria, wherever it may be.

Subclause (2) details the ways in which a vessel may be connected with Victoria.

Clause 86 amends provisions of the Marine (Drug, Alcohol and Pollution Control) Act 1988 to remove references to certification requirements for commercial vessels which are dealt with under the Marine Safety (Domestic Commercial Vessel) National Law. It does this in relation to provisions about cancellation and disqualification on conviction of offences for exceeding prescribed alcohol levels.

Subclause 1(a) removes references to "certificates of competency" by substituting "marine licence" for "marine licence or certificate of competency" (where twice occurring) in section 28A(1) of the Marine (Drug, Alcohol and Pollution Control) Act 1988.

Subclause 1(b) substitutes "that licence" for "that licence or certificate" in section 28A(1) of the Marine (Drug, Alcohol and Pollution Control) Act 1988.

Subclause (2) makes corresponding substitutions in respect of section 28A(2) of the Marine (Drug, Alcohol and Pollution Control) Act 1988.

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Subclause (3) omits "or certificate of competency" in section 28A(3) of the Marine (Drug, Alcohol and Pollution Control) Act 1988.

Subclause (4)(a) substitutes "marine licence" for "marine licence or certificate of competency" (where twice occurring) in section 28A(5) of the Marine (Drug, Alcohol and Pollution Control) Act 1988.

Subclause (4)(b) substitutes "that licence" for "that licence or certificate" in section 28A(5) of the Marine (Drug, Alcohol and Pollution Control) Act 1988.





Clause 87 inserts a new section 28AB after section 28A of the Marine (Drug, Alcohol and Pollution Control) Act 1988.

Section 28AB provides a new power for the court to make recommendations to the National Regulator concerning certificates of competency in appropriate circumstances.

Clause 87 provides that a court may make a recommendation to the National Regulator or delegate of the National Regulator about cancellation of a certificate of competency. A court may also make a recommendation about the disqualification of a person from obtaining a certificate of competency. A court may take either of these actions where a person has been convicted of an offence under section 28(1) of the Marine (Drug, Alcohol and Pollution Control) Act 1988. Section 28(1) makes it an offence for a person to operate a vessel or be the master or pilot of a vessel underway or at anchor while under the influence of alcohol to the extent specified in that section.

Subclause (2) seeks to ensure that such court recommendations are made in the same manner irrespective of whether the vessel concerned is a recreational vessel or a commercial vessel. It does

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this by providing that a recommendation must not be made under this section unless a similar action could be taken under section 28A of the Marine (Drug, Alcohol and Pollution Control) Act 1988. Section 28A provides for a range of actions that a court may take in certain circumstances which may require the cancellation of a marine licence of a person convicted of the same offence or that person's disqualification from holding a marine licence for a particular period, depending on the nature of the offence.

Subclause (3) provides that a court may make such a recommendation in addition to imposing any penalty for the offence concerned.

Clause 88 amends the Marine (Drug, Alcohol and Pollution Control) Act 1988 to reflect that the Marine Safety (Domestic Commercial Vessel) National Law regulates matters concerning commercial vessels and their certifications.

Clause 88 makes changes to remove references to "certificates of competency" as these are matters which are dealt with under the Marine Safety (Domestic Commercial Vessel) National Law.

Subclause (1) substitutes "Immediate suspension of marine licence in certain circumstances" for the heading to section 28C of the Marine (Drug, Alcohol and Pollution Control) Act 1988. Section 28C makes provision for the immediate suspension of marine licences and certificates of competency in certain circumstances.

Subclause (2)(a) substitutes "marine licence" for "marine licence or certificate of competency" in section 28C(1) of the Marine (Drug, Alcohol and Pollution Control) Act 1988.

Subclause (2)(b) substitutes "licence document" for "licence document or certificate" in section 28C(1) of the Marine (Drug, Alcohol and Pollution Control) Act 1988.

Subclause (3) makes corresponding changes in relation to section 28C(1A) of the Marine (Drug, Alcohol and Pollution Control) Act 1988.

Subclause (4) omits "or certificate of competency" in section 28C(3) of the Marine (Drug, Alcohol and Pollution Control) Act 1988.

Subclause (5) makes a technical change by inserting "or (1A)" after "(1)" in section 28C(4) of the Marine (Drug, Alcohol and Pollution Control) Act 1988.

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Division 5—Amendment of Transport (Compliance and Miscellaneous) Act 1983

Clause 89 amends section 228T(3) of the Transport Compliance and Miscellaneous Act 1983 which provides for the appointment of transport safety officers. Clause 89 inserts after subsection (3) new subsection (4) which provides that a transport safety officer is an officer of the State of Victoria.

The effect of clause 89 is to put beyond doubt that transport safety officers are officers of the State within the meaning of the definition of "agency" in section 6 of the National Law (Cth).

Clause 90 amends the general marine related inspection, inquiry and search powers under the Transport (Compliance and Miscellaneous) Act 1983.

Clause 89 amends section 228ZBA(1)(c) of the Transport (Compliance and Miscellaneous) Act 1983 to provide an additional power for transport safety officers who enter marine premises, board or propose to board a vessel for compliance and investigative purposes.

The additional power enables certain persons to direct a master of owner of a vessel or a person operating a vessel to supply information, answer questions or produce documents. The power can be exercised provided the purpose of the direction is to determine whether the vessel is a domestic commercial vessel within the meaning of the Marine Safety (Domestic Commercial Vessel) National Law. The power applies to transport safety officers who enter marine premises, board or propose to board a vessel for compliance and investigative purposes.

The purpose of the clause is to promote the seamless operation of the Bill and the Marine Safety (Domestic Commercial Vessel) National Law. It is essential to be able to determine the nature of a vessel at any one time and therefore which jurisdiction, the Commonwealth or Victoria, has regulatory responsibility for the vessel.

Subclause (2) is a technical amendment to section 228ZBA(3) of the Transport (Compliance and Miscellaneous) Act 1983 which recognises the insertion of the new power under clause 89 of the Bill. The effect of subclause (2) is to make it an offence to refuse or fail without a reasonable excuse to comply with a direction given under clause 89.

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Clause 91 inserts "or the Marine Safety (Domestic Commercial Vessel) National Law" after "2010" in section 228ZNA(4) of the Transport (Compliance and Miscellaneous) Act 1983.

The effect of clause 91 is to make a minor change to the requirement for a person in charge of a vessel to stop and provide licence or certificates when directed by a transport safety officer. This power is contained in section 228ZNA(4) of the Transport (Compliance and Miscellaneous) Act 1983.

Clause 91 recognises that certificates in relation to commercial vessels are regulated by the Marine Safety (Domestic Commercial Vessel) National Law and not by the Marine Safety Act 2010. The effect of clause 91 is that an offence under section 228ZNA of the Transport (Compliance and Miscellaneous) Act 1983 includes a failure of a master of a domestic commercial vessel to produce a certificate, licence or exemption issued under the Marine Safety (Domestic Commercial Vessel) National Law as well as under the Marine Safety Act 2010.

Division 6—Amendment of Transport Integration Act 2010

Division 6 of the Bill makes changes to the Transport Integration Act 2010 to reflect the commencement of the Marine Safety (Domestic Commercial Vessel) National Law, including the additional functions of the Safety Director under the Marine Safety (Domestic Commercial Vessel) National Law.

Clause 92 amends the definitions contained in section 3 of the Transport Integration Act 2010. These changes are—

amending the definition of marine safety matter in paragraph 3(b)(i) by substituting "providing a service" for "holding a certificate of competency or service". This recognises that certificates of competency are relevant to the regulation of domestic commercial vessels and are regulated under the Marine Safety (Domestic Commercial Vessel) National Law and not by the Safety Director using powers under the Transport Integration Act 2010;

inserting in section 3 of the Transport Integration Act 2010 a definition of National Regulator to align with the Marine Safety (Domestic Commercial Vessel) National Law. National Regulator is defined to mean "the National Marine Safety Regulator within the

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meaning of the Marine Safety (Domestic Commercial Vessel) National Law";

extending the definition of transport legislation in section 3 of the Transport Integration Act 2010 to include the Marine Safety (Domestic Commercial Vessel) National Law and the Bill (once it is enacted). The purpose of this amendment is to extend to the Safety Director the requirements of the Transport Integration Act 2010 when the Safety Director is acting as a delegate of the National Regulator.

Clause 93 amends section 171 of the Transport Integration Act 2010 which establishes the office of the Safety Director. Clause 92 inserts after subsection (3) a new subsection (4) that the Safety Director is an officer of the State of Victoria.

The effect of clause 93 is to put beyond doubt that the Safety Director is subject to the Transport Integration Act 2010 when carrying out functions or exercising powers pursuant to the Marine Safety (Domestic Commercial Vessel) National Law. The Safety Director is empowered to act as delegate of the National Regulator under proposed section 173(1)(ab) of the Transport Integration Act 2010, which is to be inserted by clause 94 of the Bill.

The Safety Director is the head of Transport Safety Victoria (TSV) and may delegate his or her functions and powers to persons including employees employed under Part 3 of the Public Administration Act 2004. These persons are employees of the Department of Transport which is a transport body within the meaning of section 3 of the Transport Integration Act 2010 and therefore subject to that Act.

Clause 94 amends the objects of the Safety Director. Clause 94 inserts after section 172(2)(a) of the Transport Integration Act 2010 a new section (ab) to include an additional primary object as a consequence of the role of the Safety Director as delegate under the Marine Safety (Domestic Commercial Vessel) National Law.

The additional object comprises the objects set out in section 3 of the Marine Safety (Domestic Commercial Vessel) National Law. These are—

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to form a part of a cooperative scheme between the Commonwealth, the States and the Northern Territory that provides a single national framework for ensuring the safe operation, design, construction and equipping of domestic commercial vessels; and

to implement Australia's international obligations in relation to the safety of domestic commercial vessels; and

to facilitate the development of a safety culture that will prevent, or mitigate the effects of, marine incidents; and

to provide a framework for the development and application of consistent national standards relating to the operation, design, construction and equipping of domestic commercial vessels; and

to enhance the efficient and orderly operation of domestic commercial vessels; and

to provide an effective enforcement framework.

Clause 95 inserts after section 173(1)(a) of the Transport Integration Act 2010 a new provision (ab) to empower the Safety Director to perform any functions or duties conferred on the Safety Director as a delegate of the National Regulator.

Functions or duties may be conferred on the Safety Director as a delegate of the National Regulator under the Marine Safety (Domestic Commercial Vessel) National Law or the Australian Maritime Safety Authority Act 1990 of the Commonwealth.

Subclause (2) inserts after section 173(1)(b)(v) of the Transport Integration Act 2010 a provision which enables the Safety Director to make recommendations to the Minister for Ports with respect to the enforcement of the Marine Safety (Domestic Commercial Vessel) National Law.

The Marine Safety (Domestic Commercial Vessel) National Law enables the National Regulator to delegate certain powers and functions to an officer or employee of an agency of the Commonwealth, or an officer or employee of an agency of a State or the Northern Territory with the consent of the relevant State or the Northern Territory.

The delegation of functions to jurisdictional marine safety agencies and their employees is fundamental to the day-to-day

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operation of the national scheme. It is the employees of the State and Northern Territory marine safety agencies who will deliver services to the public as well as undertake the investigatory and compliance roles in each jurisdiction on behalf of the National Regulator.

It is envisaged that the Safety Director will be delegated the functions of the National Regulator in Victoria.

Any such delegation is conditional on the acceptance of the Safety Director and the approval of the Minister. This is consistent with section 11(7) of the National Law (Cth) which provides that the National Regulator cannot delegate a power or function to an employee of an agency of a State or Territory without the consent of the State or Territory. Delegations must be in writing.

The Marine Safety (Domestic Commercial Vessel) National Law permits functions delegated to the Safety Director under the Marine Safety (Domestic Commercial Vessel) National Law to be sub-delegated to an officer or employee of an agency of Victoria.

The National Regulator may also delegate certain powers under the Australian Maritime Safety Authority Act 1990 of the Commonwealth to any person. The amendment to section 173(1) of the Transport Integration Act 2010 confers on the Safety Director the function of performing those functions or duties conferred on the Safety Director as a delegate of the National Regulator under the Australian Maritime Safety Authority Act 1990 of the Commonwealth.

Functions delegated to the Safety Director under the Australian Maritime Safety Authority Act 1990 of the Commonwealth cannot be sub-delegated.

Clause 96 amends the Transport Integration Act 2010 by inserting a new provision after section 177(2)(b). This provision is section 177(2)(ba) of that Act. Subsection (ba) of section 177(2) of the Transport Integration Act 2010 permits the disclosure or publication of information if the Safety Director considers it necessary for the safe operation of rail, bus or marine transport.

The information is obtained or collected by the Safety Director in the performance or exercise of functions or powers under the Transport Integration Act 2010 or any other Act. These

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functions or powers include those exercised as delegate under the Marine Safety (Domestic Commercial Vessel) National Law (clause 95).

The information may include information of a personal nature or that has commercial sensitivity for the person about whom it is kept.

The effect of clause 96 is to broaden the capacity of the Safety Director to disclose such information in certain circumstances. These circumstances are in relation to certain investigations or inquiries conducted by him or her.

Clause 96 expands the circumstances in which the Safety Director may disclose information to any other person.

It does this by permitting the Safety Director to publish any information if the Safety Director considers it necessary for the safe operation of rail, bus and marine transport. This information includes a report arising out of an investigation by him or her under the Marine Safety (Domestic Commercial Vessel) National Law as a delegate of the National Regulator.

Clause 97 inserts after section 178(4) of the Transport Integration Act 2010 a new subsection (5). Subsection (5) limits the ability of the Safety Director to sub-delegate powers or functions which have been delegated to him or her pursuant to the Marine Safety (Domestic Commercial Vessel) National Law except as provided under that law.

The capacity of the Safety Director to sub-delegate powers or functions delegated under the Marine Safety (Domestic Commercial Vessel) National Law is provided in section 11 of the National Law (Cth).

The National Law (Cth) permits the sub-delegation of functions delegated under that law to certain persons.

Clause 98 provides for the authorisation by the Safety Director of certain persons to act as delegates under the Australian Maritime Safety Authority Act 1990 of the Commonwealth for the purposes of the Marine Safety (Domestic Commercial Vessel) National Law.

The delegation of functions by the Safety Director is fundamental to the day-to-day operation of the national scheme. It is the employees of Transport Safety Victoria who will deliver services to the public as well as undertake the investigatory and compliance roles in Victoria on behalf of the National Regulator. The Marine Safety (Domestic Commercial Vessel) National Law

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Act 2012 of the Commonwealth does not contain general powers to support the National Regulator in the performance of its functions. Instead, the National Regulator relies on the general powers contained in section 10 of the Australian Maritime Safety Authority Act 1990 of the Commonwealth for administration of the Marine Safety (Domestic Commercial Vessel) National Law.

Section 10 of the Australian Maritime Safety Authority Act 1990 of the Commonwealth does not provide the capacity to sub-delegate. The effect of this is that the Chief Executive Officer of the National Regulator (AMSA) is required to delegate, under section 10, the general powers being relied on by officers involved in providing services on behalf of the National Regulator.

If section 10 of the Australian Maritime Safety Authority Act 1990 of the Commonwealth did provide capacity to sub-delegate, it would be possible instead for the National Regulator to delegate powers and functions to the Safety Director who would sub-delegate those functions and powers to individual officers in Transport Safety Victoria.

Clause 98 addresses this situation by inserting section 178A into the Transport Integration Act 2010.

Section 178A provides that subject to subsection (2) (which specifies who may be authorised), the Safety Director may authorise in writing certain persons to act as delegates under section 58 of the Australian Maritime Safety Authority Act 1990 of the Commonwealth for the purposes of the Marine Safety (Domestic Commercial Vessel) National Law.

The Safety Director may authorise delegations to—

transport safety officers (which includes marine safety inspectors and members of the Victoria Police); and

persons employed under Part 3 of the Public Administration Act 2004 to enable the Safety Director to carry out his or her functions; and

consultants, contractors or agents engaged by the Safety Director.

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Subsection (2) provides for the manner in which such authorisations can be made for administrative efficiency.

These are that that such an authorisation may be made—

in relation to a person or class of persons specified in the instrument, or

in relation to the holder or the holder from time to time of an office specified or of each office in a class or offices specified in the instrument.

Division 7—Repeal of Part

Clause 99 is a technical provision the effect of which is to repeal Part 11 of the Bill on the first anniversary of the first day on which all of the provisions of the Part are in operation.

Part 11 of the Bill makes changes to a range of Victorian statutes which are affected by the Bill. These consequential changes are necessary to support the commencement of the Bill and the transition to the national scheme.

It is noted that the repeal of Part 11 does not affect the continuing operation of the amendments made by it in accordance with section 15(1) of the Interpretation of Legislation Act 1984.

SCHEDULE

Schedule of fees

The Schedule sets out the fees and charges payable to Victoria in relation to services provided to the National Regulator under the Marine Safety (Domestic Commercial Vessel) National Law. The fees are the same fees currently set in respect of commercial vessels and commercial vessels services by the Marine Safety Regulations 2012 made under the Marine Safety Act 2010.

The services may be provided by the following persons, acting as a delegate of the National Regulator—

the Safety Director;

transport safety officers (which includes marine safety inspectors and members of the Victoria Police);

persons employed under Part 3 of the Public Administration Act 2004 to enable the Safety Director to carry out his or her functions;

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consultants, contractors or agents engaged by the Safety Director.

The Schedule of fees is made under clause 14(2) of the Bill. Clause 14(2) provides that until regulations are made under clause 14(1) of the Bill, the fees payable are those specified in the Schedule.

The fees apply in Victoria until cost recovery levels are reviewed and new fee regulations are made in the future accordance with the requirements of the Subordinate Legislation Act 1994.

Clause 1 contains definitions of certificate of competency, certificate of survey and National Regulator. These definitions align with the definition of those terms in the Marine Safety (Domestic Commercial Vessel) National Law. Section 6 of the National Law (Cth) defines these terms as follows—

Certificate of competency means a certificate issued under section 60 (of that law);

Certificate of survey means a certificate issued under section 48 (of that law);

The definition of National Regulator in section 6 of the National Law (Cth) refers to section 9 of that law. Section 9 of the National Law (Cth) provides that AMSA is the National Marine Safety Regulator. Section 9 of the National Law (Cth) also notes that AMSA is established by the Australian Maritime Safety Authority Act 1990 of the Commonwealth. Section 10 to that Act sets out the general powers of AMSA.

Clause 1(2) defines Class and Class 1 vessel to have the same meanings as they have in the Marine Safety Regulations 2012 as in force before the commencement of the Act as if a reference in those definitions to a commercially operated vessel were a reference to a domestic commercial vessel.

Clause 2 provides that the specified fee to be paid for an application for a certificate of survey is 1·54 fee units.

Clause 3(1) specifies the fee to be paid for the design phase survey of new domestic commercial vessels.

The fee is the amount specified in respect of a particular size of vessel set out in column 2 of the table following clause 3(1). That amount is calculated by multiplying the length of the vessel in metres by the amount specified for that class of vessel in column 3 or 4 of the table opposite that size of vessel.

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Clause 3(2) specifies the fee to be paid for the survey of the construction and commissioning phases of new domestic commercial vessels.

The fee is the amount specified in respect of a particular size of vessel set out in column 2 of the table following clause 3(2). That amount is calculated by multiplying the length of the vessel in metres by the amount specified for that class of vessel in column 3 or 4 of the table opposite that size of vessel.

Clause 4 specifies the fee to be paid for booking a survey for an existing domestic commercial vessel. That fee must be paid at the time of booking such a survey. The fee is 8·4 fee units.

Clause 5 specifies the fee to be paid for the survey of an existing domestic commercial vessel. The fee is the amount specified in respect of a particular size of vessel set out in column 2 of the table following clause 5. That amount is the amount specified for that class of vessel in column 3 or 4 of the table opposite that size of vessel.

Clause 6 specifies the fee to be paid for additional visits to complete survey of an existing vessel. The specified fee to be paid for each additional visit by a surveyor authorised by the National Regulator is 8·4 fee units.

Clause 7 specifies the fee to be paid for an application to vary the conditions of a safe construction certificate for a domestic commercial vessel. The fee is 2·1 fee units. The same fee applies in respect of a fleet of domestic commercial vessels.

Clause 8 specifies the fee for survey for altering the service category of a vessel.

Clause 8(1) specifies the fee to be paid for each hour spent by a person authorised by the National Regulator conducting a design phase survey for this purpose. The fee is 6·3 fee units.

Clause 8(2) specifies the fee to be paid for each inspection of a domestic commercial vessel of for the purposes of a survey of the construction and commissioning phases of an alteration to the service category of vessels. The fee is 8·4 fee units.

Clause 9 specifies the fee to be paid for the issue or renewal of a safe construction certificate for a domestic commercial vessel. The fee is 4·6 fee units.

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Clause 10 specifies the fee to be paid for the issue of a duplicate safe construction certificate for a domestic commercial vessel. The fee is 4·6 fee units.

Clause 11 specifies the fee to be paid for an application for the issue, variation or renewal of a certificate of competency. The fee is 1·54 fee units.

Clause 12 specifies the fee to be paid for the issue or renewal of a certificate of competency. The fee is 4·6 fee units.

Clause 13 specifies the fee to be paid for the variation of a certificate of competency. The fee is 2·9 fee units.

Clause 14 specifies the fee to be paid for the issue of a duplicate certificate of competency. The fee is 4·6 fee units.

Clause 15(1) specifies the fee to be paid by a person who undertakes a written examination conducted by or on behalf of the National Regulator. Where the written examination is required for the issue, variation or renewal of a certificate of competency, the fee is 3·34 fee units.

Clause 15(2) specifies the fee to be paid by a person who undertakes an oral examination conducted by the National Regulator. Where the oral examination is required for the issue, variation or renewal of a certificate of competency the fee is 6·7 fee units.

ANNEXURES

Annexure 1 sets out the Marine Safety (Domestic Commercial Vessel) National Law Act 2012 of the Commonwealth and the accompanying explanatory clause notes. Schedule 1 of the Marine Safety (Domestic Commercial Vessel) National Law Act 2012 of the Commonwealth, together with regulations and other legislative instruments in force under that law (including savings or transitional provisions), comprise the Commonwealth domestic commercial vessel national law which is applied as a law of Victoria by clause 4 of the Bill.

Annexure 2 sets out the Marine Safety (Domestic Commercial Vessel) National Law (Consequential Amendments) Act 2012 of the Commonwealth and the accompanying explanatory clause notes. The Marine Safety (Domestic Commercial Vessel) National Law (Consequential Amendments) Act 2012 of the Commonwealth amends the Marine Safety (Domestic Commercial Vessel) National Law Act 2012 of the Commonwealth. The amendments are not yet proclaimed.

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Annexure 3 sets out the Marine Safety (Domestic Commercial Vessel) National Law Amendment Act 2013 of the Commonwealth and the accompanying explanatory clause notes. The Marine Safety (Domestic Commercial Vessel) National Law Amendment Act 2013 of the Commonwealth amends the Marine Safety (Domestic Commercial Vessel) National Law Act 2012 of the Commonwealth. The amendments will commence immediately after the commencement of section 3 of the Marine Safety (Domestic Commercial Vessel) National Law Act 2012.

The Annexures do not form part of the Bill.

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